STATE OF CALIFORNIA CALIFORNIA LAW REVISION COMMISSION · tive Committee), Alice Mead (California...

STATE OF CALIFORNIA

CALIFORNIA LAWREVISION COMMISSION

RECOMMENDATION

Health Care Decisions for AdultsWithout Decisionmaking Capacity

December 1998

California Law Revision Commission4000 Middlefield Road, Room D-1

Palo Alto, CA 94303-4739

CALIFORNIA LAW REVISION COMMISSION

COMMISSION MEMBERS

ARTHUR K. MARSHALLChairperson

HOWARD WAYNE EDWIN K. MARZECAssembly Member, Vice Chairperson Member

ROBERT E. COOPER RONALD S. ORRMember Member

BION M. GREGORY SANFORD M. SKAGGSLegislative Counsel Member

PAMELA L. HEMMINGER COLIN W. WIEDMember Member

COMMISSION STAFF

Legal

NATHANIEL STERLING STAN ULRICHExecutive Secretary Assistant Executive Secretary

BARBARA S. GAAL BRIAN P. HEBERT ROBERT J. MURPHYStaff Counsel Staff Counsel Staff Counsel

Administrative-Secretarial

LAUREN M. TREVATHAN VICTORIA V. MATIASAdministrative Assistant Secretary

NOTEThe Commission’s reports, recommendations, and studies are

published in separate pamphlets that are later bound in hardcoverform. The page numbers in each pamphlet are the same as in thevolume in which the pamphlet is bound, which permits citation toCommission publications before they are bound.

This publication (#201) will appear in Volume 29 of the Commis-sion’s Reports, Recommendations, and Studies.

Commission publications and other materials are available on theInternet at http://www.clrc.ca.gov/.

1999] 1

STATE OF CALIFORNIA

CALIFORNIA LAWREVISION COMMISSION

RECOMMENDATION

Health Care Decisions for AdultsWithout Decisionmaking Capacity

December 1998

California Law Revision Commission4000 Middlefield Road, Room D-1

Palo Alto, CA 94303-4739

2 HEALTH CARE DECISIONS [Vol. 29

NOTEThis report includes an explanatory Comment to each section

of the recommended legislation. The Comments are written asif the legislation were already operative, since their primarypurpose is to explain the law as it will exist to those who willhave occasion to use it after it is operative.

Cite this report as Health Care Decisions for Adults Without Decision-making Capacity, 29 Cal. L. Revision Comm’n Reports 1 (1999). Thisis publication #201.

1999] 3

CONT E NT S

Letter of Transmittal .................................... 5

Acknowledgments...................................... 7

Recommendation ..................................... 11

Proposed Law ........................................ 55

Conforming Revisions and Repeals ...................... 149

Revised Comments ................................... 227

Table Showing Location of UHCDA Provisions inProposed Law ................................. 243

1999] RECOMMENDATION 5

STATE OF CALIFORNIA

CALIFORNIA LAW REVISION COMMISSION4000 Middlefield Road, Room D-1Palo Alto, CA 94303-4739650-494-1335

ARTHUR K. MARSHALL, ChairpersonASSEMBLY MEMBER HOWARD WAYNE, Vice ChairpersonROBERT E. COOPERBION M. GREGORYPAMELA L. HEMMINGEREDWIN K. MARZECRONALD S. ORRSANFORD M. SKAGGSCOLIN W. WIED

December 11, 1998

To: The Governor of California, andThe Legislature of California

This recommendation proposes a new Health Care DecisionsLaw to consolidate the Natural Death Act and the statutes govern-ing the durable power of attorney for health care, and providecomprehensive rules relating to health care decisionmaking forincapacitated adults. The proposed law, drawing heavily from theUniform Health-Care Decisions Act (1993), includes new rulesgoverning individual health care instructions, and provides a newoptional statutory form of an advance health care directive.

The proposed law would add procedures governing surrogatehealth care decisionmakers (“family consent” law) where an indi-vidual has not appointed an agent and no conservator of the personhas been appointed, and procedures for making health care deci-sions for patients who do not have any surrogate willing to serve.

Conforming changes in the procedure for obtaining court autho-rization for medical treatment would make clear that courts inproper cases have the same authority as other surrogates to makehealth care decisions, including withholding or withdrawal of life-sustaining treatment. Similarly, the statute governing decisionmak-ing by conservators for patients who have been adjudicated to lackthe capacity to make health care decisions are conformed to thestandards governing other health care surrogates.

This recommendation is submitted pursuant to Resolution Chap-ter 91 of the Statutes of 1998.

Respectfully submitted,

Arthur K. MarshallChairperson

1999] 7

ACKNOWLEDGMENTS

Many individuals and organizations have participated in theCommission’s work on this recommendation. The Commissionwould like to acknowledge the assistance provided by those whohave supported all or part of the proposal as well as those whohave expressed objections to one or more aspects. The participa-tion of a broad spectrum of experts aids the Commission inpreparing a better proposal, and the Commission benefits greatlyfrom the public service performed by these individuals andorganizations.

The Commission is indebted to its consultant, Prof. DavidEnglish, who was also the reporter for the Uniform Health-CareDecisions Act, which provided the starting point for much recom-mendation and Professor English regularly attended meetings andcommented on materials as the project progressed. The Commis-sion appreciates the substantial amount of time devoted by many ofthose who wrote commentaries on proposed drafts and whoattended Commission meetings. Particularly noteworthy has beenthe assistance provided by James L. Deeringer (liaison with theState Bar Estate Planning, Trust and Probate Law Section Execu-tive Committee), Alice Mead (California Medical Association),and Matthew S. Rae, Jr. (California Commission on Uniform StateLaws), who regularly attended Commission meetings and providedwritten materials.

The Commission would also like to thank the members of theState Bar Advance Directive Committee (including Leah V.Granof, current Chair, Faye Blix, James L. Deeringer, DavidEnglish, and Harley Spitler), the Long Term Care Subcommittee ofthe Los Angeles County Bar Association Bioethics Committee(including Christine J. Wilson, R.N., J.D., Chair, Terri D. Keville,J.D., and Linda Faber-Czingula, R.N.), and the Beverly Hills BarAssociation Probate, Trusts and Estates Section ExecutiveCommittee (including Jeannette Hahm, Chair, Phyllis Cardoza,Joelle Drucker, Susan Jabkowski, Marc L. Sallus, Bert Z.Tigerman, and Geraldine Wyle).

The Commission received valuable assistance from a number oflaw students in the course of this project: Cynthia Bradford andAndrew Jaramillo (Stanford Law School), Matthew Waddell and


Tina Chen (University of Pennsylvania Law School), andresearchers in the Hastings Law School Public Law ResearchInstitute (under the direction of Stephanie E. Shaw), includingKimberly A. Jackson, Lisa Pau, Suzanne Robinson, Robert E.Sheehan, Dawn Takeuchi, and Nicole A. Wesley.

The individuals listed below also assisted the Commission bysubmitting written comments or participating at Commission meet-ings. Inclusion of the name of an individual or organization shouldnot be taken as an indication of the individual’s opinion or theorganization’s position on any part of the proposed law. TheCommission regrets any errors or omissions that may have beenmade in compiling these acknowledgments.

ELIZABETHANNE MILLER ANGEVINE

Miller & Angevine, Whittier

SHERRY BRAHENY, M.D.California Medical Association Bioethics

Committee, San Diego

ERIC M. CARLSON

Nursing Home ProjectBet Tzedek, Los Angeles

PROF. SUSAN CHANNICK

California Western School of LawSan Diego

KATE CHRISTENSEN, M.D.Kaiser Permanente

LORI COSTA

California Association of Health Facilities

LINDA DANIELS, M.D., J.D.Bioethics Committee, San Diego County

Medical Society

CAROL GALLEGOS

Department of Health Services,Sacramento

MARGE GINSBURG

Sacramento Healthcare Decisions

MICHAEL GUNTHER-MAHER, M.D.Echo, Sacramento

PAUL GORDON HOFFMAN

Hoffman Sabban & WatenmakerLos Angeles

MARLYS HUEZ

Department of Health Services,Sacramento

MELVIN H. KIRSCHNER, M.D.LACMA-LACBA Joint Committee on

Biomedical Ethics, Los Angeles

PATRICIA L. MCGINNIS

California Advocates for Nursing HomeReform, San Francisco

RONALD B. MILLER, M.D.U.C. Irvine College of Medicine; Council

on Ethical Affairs, California MedicalAssociation

ROBERT D. ORR, M.D.Loma Linda University Medical Center

RUTH E. RATZLAFF

Attorney, Fresno

LOIS RICHARDSON

California Healthcare AssociationSacramento

LAWRENCE J. SCHNEIDERMAN, M.D.U.C. San Diego School of Medicine

HERBERT SEMMEL

National Senior Citizens Law CenterLos Angeles

HARLEY SPITLER

Cooley Godward, San Francisco

1999] ACKNOWLEDGMENTS 9

KEVIN G. STAKER

Staker & Associates, Camarillo

MAUREEN SULLIVAN

California Healthcare Association,Sacramento

SHANNON SUTHERLAND

California Nurses Association,Sacramento

BRUCE HUDSON TOWNE

Attorney, Sacramento

STUART D. ZIMRING

Attorney, North Hollywood

1999] 11

HE AL T H C AR E DE C ISIONS FOR ADUL T SWIT HOUT DE C ISIONM AKING C APAC IT Y

California has been a pioneer in the area of health caredecisionmaking for adults without decisionmaking capacity,with the enactment of the 1976 Natural Death Act1 and the1983 Durable Power of Attorney for Health Care.2 Legislationin other states over the last 15 years, enactment of the federalPatient Self-Determination Act in 1990,3 and promulgation ofa new Uniform Health-Care Decisions Act in 1993,4 suggestthe need to review existing California law and considerrevising and supplementing it.

California law does not adequately address several impor-tant areas of the law concerning health care decisionmakingfor adults who lack capacity:

(1) Existing law does not provide a convenient mechanismfor making health care treatment wishes known and effective,separate from the procedure for appointing an agent.

(2) The principles governing family consent or surrogatedecisionmaking in the absence of a power of attorney forhealth care are not clear.

(3) There are no general rules governing health care deci-sions for incapacitated persons who have no advance directiveor known family or friends to act as surrogates.

1. 1976 Cal. Stat. ch. 1439. This was also the year the New Jersey SupremeCourt decided the well-known Karen Ann Quinlan case. In re Quinlan, 70 N.J.10, 355 A.2d 647 (1976), cert. denied, 429 U.S. 922 (1976).

2. 1983 Cal. Stat. ch. 1204, enacted on Commission recommendation. Seeinfra note 8.

3. Omnibus Budget Reconciliation Act of 1990, Pub. L. No. 101-508, §§4206, 4751, 104 Stat. 1388, 1388-115 to 1388-117, 1388-204 to 1388-206. Seeparticularly 42 U.S.C.A. §§ 1395cc(a), 1396a(w)(1) (Westlaw 1998).

4. 9 (Pt. 1) U.L.A. 285 (West Supp. 1998) [hereinafter UHCDA].


(4) Statutes governing court-authorized medical treatmentfor patients without conservators are unduly limited.

The proposed Health Care Decisions Law provides proce-dures and standards for making decisions in these situations,and adopts consistent rules governing health care decision-making by surrogates, whether they are family members,agents, public or private conservators, surrogate committees,or courts. The proposed law makes many revisions to promotethe use and recognition of advance directives, to improveeffectuation of patients’ wishes once they become incapableof making decisions for themselves, to simplify the statutoryform and make it easier to use and understand, and to modern-ize terminology. However, the scope of the proposed law islimited: it governs health care decisions to be made for adultsat a time when they are incapable of making decisions ontheir own and provides mechanisms for directing their healthcare in anticipation of a time when they may becomeincapacitated. It does not govern health care decisions forminors or adults having capacity.

NEED FOR REVISED LAW

In a 1991 article entitled Time for a New Law on HealthCare Advance Directives, Professor George Alexander givesthe following useful overview:5

During the last decade, states have enacted three differentkinds of documents to deal with health care of incompetentpatients. The legislation’s main impetus and central focushave been to provide a procedure to approve life supporttermination in appropriate cases, although it also addressesother health care concerns. The earliest of the statutes was anatural death act, which authorizes a directive, popularlycalled a living will, to physicians. The second was a generaldurable power of attorney, sometimes in the form of a spe-

5. 42 Hastings L.J. 755, 755 (1991) (footnotes omitted).


cially crafted health care durable power of attorney, whichessentially empowers an appointed agent to make appropri-ate decisions for an incompetent patient. The agent isbound by directions contained in the appointing power.Finally, some states have enacted family consent lawsempowering others, typically family, to decide health carematters absent a directive or power of attorney to guidethem. At the end of 1990, Congress gave these laws newimportance by mandating their observance.

The statutes differ; provisions of one form conflict withprovisions of another form. Most contradictions raise prob-lems, some nettlesome, others destructive of importantinterests. After more than a decade of experience with suchforms, it is time to review the present state of the laws andto coordinate and debug them. In the author’s view, a singlestatute incorporating the best of each of the three types oflaw is now in order.

These concerns are addressed by the proposed Health CareDecisions Law.

BACKGROUND AND OVERVIEW

The right of a competent adult to direct or refuse medicaltreatment is constitutionally protected. This “fundamentalliberty interest” is inherent in the common law and protectedby federal and state constitutional privacy guarantees.6 The

6. See generally Cruzan v. Director, Mo. Dep’t of Health, 497 U.S. 261(1990); Cobbs v. Grant, 8 Cal. 3d 229, 242, 502 P.2d 1, 104 Cal. Rptr. 505(1972); Barber v. Superior Court, 147 Cal. App. 3d 1006, 1015, 195 Cal. Rptr.484 (1983); Bartling v. Superior Court, 163 Cal. App. 3d 186, 195, 209 Cal.Rptr. 220 (1984); Bouvia v. Superior Court, 179 Cal. App. 3d 1127, 1137, 225Cal. Rptr. 297 (1986); Conservatorship of Drabick, 200 Cal. App. 3d 185, 206,245 Cal. Rptr. 840 (1988); People v. Adams, 216 Cal. App. 3d 1431, 1437, 265Cal. Rptr. 568 (1990); Donaldson v. Van de Kamp, 2 Cal. App. 4th 1614, 1619,4 Cal. Rptr 2d 59 (1992); Thor v. Superior Court, 5 Cal. 4th, 725, 731, 855 P.2d375, 21 Cal. Rptr. 2d 357 (1993); Rains v. Belshé, 32 Cal. App. 4th 157, 166, 38Cal. Rptr. 2d 185 (1995).

In the Natural Death Act, the Legislature made the explicit finding that “anadult person has the fundamental right to control the decisions relating to therendering of his or her own medical care, including the decision to have life-sustaining treatment withheld or withdrawn in instances of a terminal condition


proposed law reaffirms this fundamental right along the linesof the Uniform Health-Care Decisions Act, which

acknowledges the right of a competent individual to decideall aspects of his or her own health care in all circum-stances, including the right to decline health care or todirect that health care be discontinued, even if death ensues.An individual’s instructions may extend to any and allhealth-care decisions that might arise and, unless limited bythe principal, an agent has authority to make all health-caredecisions which the individual could have made. The Actrecognizes and validates an individual’s authority to definethe scope of an instruction or agency as broadly or as nar-rowly as the individual chooses.7

There are five main approaches to health care decisionmak-ing for patients lacking capacity that are appropriate for statu-tory implementation:

1. Power of Attorney

California has a detailed statute governing durable powersof attorney for health care (DPAHC) and providing a specialstatutory form durable power of attorney for health care.8 The

or permanent unconscious condition.” Health & Safety Code § 7185.5(a). Theright is not dependent on statutory recognition and continues to exist outside ofstatutory provisions.

7. UHCDA Prefatory Note.

8. Prob. Code § 4600 et seq. This statute and its predecessor in the CivilCode were enacted on Commission recommendation. See:

Recommendation Relating to Durable Power of Attorney for Health CareDecisions, 17 Cal. L. Revision Comm’n Reports 101 (1984) (enacted as1983 Cal. Stat. ch. 1204). For legislative history, see 17 Cal. L. RevisionComm’n Reports 822 (1984); Report of Assembly Committee on Judiciaryon Senate Bill 762, 17 Cal. L. Revision Comm’n Reports 889 (1984).

Recommendation Relating to Statutory Forms for Durable Powers ofAttorney, 17 Cal. L. Revision Comm’n Reports 701 (1984) (enacted as1984 Cal. Stat. chs. 312 & 602). For legislative history, see 18 Cal. L.Revision Comm’n Reports 18-19 (1986); Report of Assembly Committeeon Judiciary on Senate Bill 1365, 18 Cal. L. Revision Comm’n Reports45 (1986).


DPAHC requires appointment of an attorney-in-fact (“agent”in the language of the statutory form) to carry out the princi-pal’s wishes as expressed in the power of attorney or other-wise made known to the attorney-in-fact, but the attorney-in-fact also has authority to act in the best interest of the princi-pal where the principal’s desires are unknown.9 The rulesgoverning the power of attorney for health care are generallycarried forward in the proposed law.

2. Natural Death Act, Living Will

California’s Natural Death Act (NDA) provides for a decla-ration concerning continuation of life-sustaining treatment inthe circumstances of a permanent unconscious condition.Under the original NDA, the patient executed a “directive tophysicians.” Under the new UHCDA, this type of writing isan “individual instruction” (although the instruction may alsobe given orally). Case law validates expressions of thepatient’s health care desires that would fall under the generalcategory of a “living will.” The proposed law integrates theseforms into a comprehensive statute.

Recommendation Relating to Elimination of Seven-Year Limit forDurable Power of Attorney for Health Care, 20 Cal. L. Revision Comm’nReports 2605 (1990) (enacted as 1991 Cal. Stat. ch. 896). For legislativehistory, see 21 Cal. L. Revision Comm’n Reports 22 (1991).

Comprehensive Power of Attorney Law, 24 Cal. L. Revision Comm’nReports 111 (1994) (enacted as 1994 Cal. Stat. ch. 307). For legislativehistory, see 24 Cal. L. Revision Comm’n Reports 567 (1994). The law asenacted, with revised Comments and explanatory text, was printed as1995 Comprehensive Power of Attorney Law, 24 Cal. L. RevisionComm’n Reports 323 (1994).

In the Commission’s study resulting in the comprehensive Power of AttorneyLaw, substantive review of health care decisionmaking issues was deferred forconsideration as the second part of the study. This enabled legislative enactmentof the comprehensive restructuring of the power of attorney statutes to proceedwithout further delay and was also necessary in light of other legislativepriorities.

9. See Prob. Code § 4720.


3. Statutory Surrogacy

As in the case of wills and trusts, most people do not exe-cute a power of attorney for health care or an “individualinstruction” or “living will.” Estimates vary, but it is safe tosay that only 10-20% of adults have advance directives.10

Consequently, from a public policy standpoint, the law gov-erning powers of attorney and other advance directives poten-tially affects far fewer people than would a law on consent byfamily members and other surrogates. Just as the law of willsis complemented by the law of intestacy, so the power ofattorney for health care needs an intestacy equivalent — someform of statutory surrogate health care decisionmaking. Thiscritical area is addressed by the proposed Health Care Deci-sions Law.

4. Court-Appointed Conservator

California law provides a highly developed Guardianship-Conservatorship Law.11 The Lanterman-Petris-Short Act pro-vides a special type of conservatorship for the gravely dis-

10. See Hamman, Family Surrogate Laws: A Necessary Supplement to LivingWills and Durable Powers of Attorney, 38 Vill. L. Rev. 103, 105 n.5 (1993)(reporting 8-15% in 1982, 1987, and 1988 surveys). One intention of the federalPatient Self-Determination Act in 1990, supra note 3, was to increase the num-ber of patients who execute advance directives. See Larson & Eaton, The Limitsof Advance Directives: A History and Assessment of the Patient Self-Deter-mination Act, 32 Wake Forest L. Rev. 249, 257-59 (1997). The educationalefforts under the PSDA may have resulted in greater use of powers of attorneyfor health care, but not significantly. See id. at 276-78 (estimates prior to PSDAranged from 4-28%, mostly in 15-20% range; afterwards, “little or no increase”or “no significant increase”). A Government Accounting Office report found that18% of hospital patients had advance directives, as compared with 50% ofnursing home residents. Id. at 275 n.184.

11. Prob. Code § 1400 et seq. The Guardianship-Conservatorship Law wasenacted on Commission recommendation. See Guardianship-ConservatorshipLaw, 15 Cal. L. Revision Comm’n Reports 451 (1980). For provisions relatingto health care, see, e.g., Prob. Code §§ 1880-1898 (capacity to give informedconsent to medical treatment), 2354 (medical treatment of conservatee not adju-dicated to lack capacity), 2355 (medical treatment of conservatee adjudicated tolack capacity), 2357 (court-ordered medical treatment).


abled.12 These provisions would not generally be revised inthis recommendation.13

5. Other Judicial Intervention

A special procedure for court-authorized medical treatmentis available for adults without conservators.14 In a relatedrevision, the proposed law conforms the scope of this proce-dure to the proposed Health Care Decisions Law.

The general power of attorney statutes were recentlyreviewed and revised on Commission recommendation.15 Inits report, the Commission noted that it had “not made a sub-stantive review of the statutes concerning the durable powerof attorney for health care …. [I]t would have been prematureto undertake a detailed review of the health care powerstatutes before the National Conference of Commissioners onUniform State Laws completed its work on the UniformHealth-Care Decisions Act.”16 Now that the uniform act hasbeen promulgated, the time is ripe for a thorough review ofhealth care decisionmaking for adults who lack capacity tomade decisions for themselves.

12. Welf. & Inst. § 5350 et seq.

13. Communications to the Commission suggest that the procedure for court-authorized medical treatment and related conservatorship provisions should bereviewed for consistency with the scope of the proposed Health Care DecisionsLaw. As noted below, this recommendation proposes revisions in Probate CodeSections 3200-3211, and in Section 2355 (medical treatment of conservateeadjudicated to lack capacity); but consideration of broader revisions in theGuardianship-Conservatorship Law is reserved for future study.

14. Prob. Code § 3200 et seq.

15. See 1994 Cal. Stat. ch. 307; 1995 Comprehensive Power of Attorney Law,24 Cal. L. Revision Comm’n Reports 323 (1994).

16. Id. at 335.


POWER OF ATTORNEY FOR HEALTH CARE

The proposed Health Care Decisions Law continues andrecasts the existing law governing the durable power of attor-ney for health care, including the statutory form durablepower of attorney for health care.17 For the well-advised orcareful individual who is making sensible arrangements forthe time when he or she may be incapacitated, the power ofattorney for health care18 is clearly the best approach.Expressing one’s desires about health care and naming one ormore agents19 subject to appropriate standards is the best wayto accomplish “incapacity planning” and seek to effectuate aperson’s intent with regard to health care decisions, especiallywith regard to life-sustaining treatment.

In the new terminology — not so new in practice, but newto the Probate Code — a power of attorney for health care isone type of “advance health care directive” (or “advancedirective”).20 The proposed law restructures the power of

17. For the central provisions governing the durable power of attorney forhealth care, see Prob. Code §§ 4600-4752. For the statutory form durable powerof attorney for health care, see Prob. Code §§ 4770-4779.

18. For convenience, the proposed law uses the term “power of attorney forhealth care” instead of “durable power of attorney for health care.” The refer-ence to durability was more important in earlier years, when the idea of anagency surviving the incapacity of the principal was still a novel concept. Theprinciple of durability should now be clear and, in any event, in the realm ofhealth care decisionmaking, it is common sense that almost all powers of attor-ney for health care will operate only after the principal becomes incapable ofmaking health care decisions. The durability feature is clear in the proposed law,notwithstanding the omission of the term “durable.”

19. The proposed law uses the more “user-friendly” term “agent” in place of“attorney-in-fact” used in the existing durable power of attorney for health carestatute. However, the terms are interchangeable, as provided in existing law(Prob. Code § 4014(a)) and in the proposed law (proposed Prob. Code §4607(a)).

20. The comment to UHCDA Section 1(1) notes that the term “appears in thefederal Patient Self-Determination Act enacted as sections 4206 and 4751 of theOmnibus Budget Reconciliation Act of 1990 and has gained widespread usageamong health-care professionals.”


attorney for health care provisions based on a mix of princi-ples from the existing Power of Attorney Law and the Uni-form Health-Care Decisions Act. Where rules apply only topowers of attorney for health care, the proposed law uses thatterminology. Where rules apply to all written advance healthcare directives, the language will vary, but the general sub-stance of the law continues, except as noted.

Execution Formalities

The original durable power of attorney for health care wassubject to a number of restrictions that are now considered tobe overly protective. When first enacted, the durable power ofattorney for property was only valid for a year following theprincipal’s incapacity.21 The original durable power of attor-ney for health care expired after seven years, except when theexpiration date fell in a time of incapacity.22 These restrictiverules may have had a role to play when the concepts werenew, but were abandoned as the law progressed and the con-cepts and instruments became familiar.

Now it is recognized that overly restrictive executionrequirements for powers of attorney for health care unneces-sarily impede the effectuation of intent. The progression frommore restrictive execution requirements to more intent-pro-moting provisions can also be seen in the development of theUniform Health-Care Decisions Act. The original UniformRights of the Terminally Ill Act of 1985 (URTIA), based inpart on the 1976 California Natural Death Act, required twowitnesses.23 The Uniform Health-Care Decisions Act, which

21. 1979 Cal. Stat. ch. 234 (enacting Civ. Code § 2307.1, repealed by 1981Cal. Stat. ch. 511, § 1).

22. See former Civ. Code § 2436.5, as enacted by 1983 Cal. Stat. ch. 1204, §10. See also Prob. Code § 4654 (transitional provision concerning former seven-year powers). The proposed law does not provide any special rules for these ear-lier powers. See infra text accompanying note 91.

23. URTIA § 2. The 1989 revision of URTIA continued this requirement.


is intended to replace URTIA, adopts the principle that nowitnesses should be required in a power of attorney for healthcare, although witnessing is encouraged, and places signaturesof witnesses are provided on the statutory form.24 As ageneral rule, the proposed law also adopts this principle inplace of the existing requirement of two witnesses ornotarization.25

Witnessing can be useful, however, even if it is notrequired. The proposed law follows the UHCDA in recom-mending but not requiring witnesses. Witness requirementscan operate as more of an intent-defeating technicality than aprotection against possible fraud.26 The drafters of theUHCDA viewed technical execution formalities as unneces-sarily inhibiting while at the same time doing “little, if any-thing, to prevent fraud or enhance reliability.”27 The genuine-ness of advance health care directives is bolstered by placingreliance on the health care providers. Recordkeeping plays acritical role. Health care providers are required to enter theadvance directive in the patient’s health care records. Medicalethics also reinforce the duty to determine and effectuategenuine intent. The proposed law also provides penalties forviolation of statutory duties.28

24. UHCDA § 2(b).

25. Prob. Code §§ 4121-4122, 4700-4701. The existing statutory form powerof attorney for health care must be witnessed; it is not validated by notarization.Prob. Code § 4771 & Comment.

26. This is not to say that more formal requirements are not important inpowers of attorney for property, where the possibility of fraud is more signifi-cant. The execution formalities in the Power of Attorney Law applicable to non-health care powers of attorney would continue to apply. See Prob. Code §§ 4121(formalities for executing a power of attorney), 4122 (requirements forwitnesses).

27. English & Meisel, Uniform Health-Care Decisions Act Gives New Guid-ance, Est. Plan. 355, 358-59 (Dec. 1994).

28. See infra text accompanying notes 69-72.


However, there are circumstances where additional protec-tions are necessary. The proposed law continues the specialrules applicable to executing a power of attorney for healthcare by a patient in a skilled nursing facility.29 These restric-tions are also applied to other written advance directives, i.e.,individual health care instructions expressing treatment pref-erences that do not appoint an agent.

The proposed law dispenses with the statutory requirementthat a power of attorney for health care state the date of itsexecution.30 Including a date is certainly the best practice, andthe statutory form provides a space for the date. However,requiring a date can defeat accomplishment of the patient’swishes, if the consequence of omission is to invalidate theadvance directive. Although dating important documents isdesirable, the law does not require either wills or trusts to bedated.31

Statutorily Required Warnings

Existing law provides a number of “warnings” that must beincluded depending on whether a form durable power ofattorney for health care is on a printed form, drawn from thestatutory form, or individually drafted by an attorney orsomeone else.32 There is an important alternative to comply-

29. See Prob. Code §§ 4121-4122, 4701.

30. See Prob. Code § 4121(a). The dating requirement originated in formerCivil Code Section 2432(a)(2) (1983 Cal. Stat. ch. 1204, § 10). The provisionoriginally provided that an agent “may not make health care decisions unless …[t]he durable power of attorney contains the date of its execution.” Probate CodeSection 4121 now provides that the power of attorney “is legally sufficient” ifthe stated requirements are satisfied. Thus, the statute does not explicitly invali-date a power of attorney that does not include a date, as did the 1983 statute.

31. See Prob. Code §§ 6110 (wills), 15200 et seq. (trusts).

32. See Prob. Code §§ 4703 (requirements for printed form), 4704 (warningsin power of attorney for health care not on printed form), 4771 (statutory form),4772 (warning or lawyer’s certificate), 4774 (requirements for statutory form).


ing with the strict execution requirements in California law.The law recognizes the validity of durable powers of attorneyfor health care and similar instruments executed in anotherstate or jurisdiction in compliance with their law.33

The existing warning provisions are confusing and rigid.While there has been an attempt to educate potential usersthrough concise and simple statements, the net effect of theexisting scheme may have been to inhibit usage. Some formof introductory explanation is still needed, however, and theoptional statutory form drawn from the UHCDA in the pro-posed law fulfills this purpose. But the proposed law nolonger attempts to instruct lawyers on how to advise theirclients. The Commission expects that those who prepareprinted forms will copy the language of the optional form oruse a reasonable equivalent without the need to mandate spe-cific language in the statute.

Revocation

A durable power of attorney for health care under existinglaw can be revoked expressly in writing or by notifying thehealth care provider orally or in writing, but it is also revokedby operation of law if the principal executes a later power ofattorney for health care.34 This last rule provides administra-tive simplicity, since a comparison of dates would showwhich power was in force. Unfortunately, it is also a trap,since a principal may attempt to amend or clarify an earlierpower, or designate a new attorney-in-fact, in ignorance ofthe rule and inadvertently wipe out important instructions. Itis also quite difficult to implement this all-or-nothing rule in

For a number of complicated, technical rules governing earlier printed formrequirements, see Prob. Code §§ 4651, 4775.

33. Prob. Code § 4653. A similar rule applies under Health and Safety CodeSection 7192.5 in the NDA.

34. Prob. Code § 4727(a), (b), (d).


the context of a broader statute permitting written individualhealth care instructions and direct surrogate designations.

A better approach is adopted in the proposed law, based onthe UHCDA.35 The intentional revocation rule is similar: apatient with capacity can revoke a designation of an agentonly by a signed writing or by personally informing thesupervising health care provider; individual health careinstructions can be revoked in any manner communicating anintent to revoke. The distinct treatment of agent designationsand health care instructions is justified because the patientshould have only one agent at a time, and a revocation shouldbe clear and evidenced, whereas health care instructions donot share this feature and can be revised and supplementedwithout any inherent restriction. Recognizing this practicalreality, a later advance directive revokes a prior directive onlyto the extent of the conflict, thus promoting the fundamentalpurpose of implementing the patient’s intent.

The proposed law continues the existing rule that a person’sdesignation of his or her spouse as agent to make health caredecisions is revoked if the marriage is dissolved orannulled.36

INDIVIDUAL HEALTH CARE INSTRUCTIONS

California does not authorize what the UHCDA calls an“individual instruction,” other than through the mechanism ofthe Natural Death Act, which applies only to patients in aterminal or permanent unconscious condition. Health careinstructions may, of course, be given in the context ofappointing and instructing an attorney-in-fact under a durable

35. UHCDA § 3.

36. Prob. Code § 4727(e). The designation is revived if the principal and theformer spouse are remarried, consistent with other statutes. See Prob. Code §§78(a) (definition of “surviving spouse”), 4154(b) (powers of attorney generally),6122(b) (wills), 6227(a) (statutory will).


power of attorney for health care. The Commission isinformed that, in practice, individuals will execute a durablepower of attorney for health care without appointing anattorney-in-fact so that they can use that vehicle to effectivelystate their health care instructions. It is also possible toappoint an attorney-in-fact, but limit the agent’s authoritywhile expressing broad health care instructions. Theseapproaches may succeed in getting formal health care instruc-tions into the patient’s record, but existing law is not well-adapted for this purpose. Health care providers’ duties underthe existing durable power of attorney for health care focus onthe agent’s decisions, not the principal’s instructions.

The proposed law adopts the UHCDA’s broader concept ofauthorizing individual health care instructions. This makes thelaw clearer, more direct, and easier to use. The option ofgiving independent health care instructions is also imple-mented as part of the optional statutory form. Using thesimple and relatively short statutory form will enable an indi-vidual to record his or her preferences concerning health careor to select an agent, or to do both.

STATUTORY SURROGATES — FAMILY CONSENT

Most incapacitated adults for whom health care decisionsneed to be made will not have formal written advance healthcare directives. It is likely that less than one-fifth of adultshave executed written advance health care directives.37 Thelaw, focusing as it does on execution of advance directives, isdeficient if it does not address the health care decisionmakingprocess for the great majority of incapacitated adults whohave not executed written advance directives.

37. See supra note 10.


Existing California Law

California statutory law does not provide general rulesgoverning surrogate decisionmaking. However, in the nursinghome context, the procedure governing consent to “medicalinterventions” implies that the “next of kin” can make deci-sions for incapacitated persons by including them in the groupof persons “with legal authority to make medical treatmentdecisions on behalf of a patient.”38

There are supportive statements in case law, but due to thenature of the cases, they do not provide comprehensive guid-ance as to who can make health care decisions for incapaci-tated persons. For example, in Cobbs v. Grant, the SupremeCourt wrote:

A patient should be denied the opportunity to weigh therisks only where it is evident he cannot evaluate the data, asfor example, where there is an emergency or the patient is achild or incompetent. For this reason the law provides thatin an emergency consent is implied …, and if the patient isa minor or incompetent, the authority to consent is trans-ferred to the patient’s legal guardian or closest availablerelative …. In all cases other than the foregoing, the deci-sion whether or not to undertake treatment is vested in theparty most directly affected: the patient.39

But this language is not a holding of the case.40

The leading case of Barber v. Superior Court 41 contains athorough discussion of the problems:

38. Health & Safety Code § 1418.8(c).

39. 8 Cal. 3d 229, 243-44, 502 P.2d 1, 104 Cal. Rptr. 505 (1972) (citationsomitted).

40. The “closest available relative” statement cites three cases, none of whichinvolve incapacitated adults. Consent on behalf of an incapacitated adult was notan issue in the case, since the patient did not lack capacity, but was claiming thathe had not given informed consent. Still, Cobbs is cited frequently in later casesinvolving consent or withdrawal of consent to medical treatment.

41. 147 Cal. App. 3d 1006, 1020-21, 195 Cal. Rptr. 484 (1983).


Given the general standards for determining when there isa duty to provide medical treatment of debatable value, thequestion still remains as to who should make these vitaldecisions. Clearly, the medical diagnoses and prognosesmust be determined by the treating and consulting physi-cians under the generally accepted standards of medicalpractice in the community and, whenever possible, thepatient himself should then be the ultimate decision-maker.

When the patient, however, is incapable of deciding forhimself, because of his medical condition or for other rea-sons, there is no clear authority on the issue of who andunder what procedure is to make the final decision.

It seems clear, in the instant case, that if the family hadinsisted on continued treatment, petitioners would haveacceded to that request. The family’s decision to the con-trary was, as noted, ignored by the superior court as being alegal nullity.

In support of that conclusion the People argue that onlyduly appointed legal guardians have the authority to act onbehalf of another. While guardianship proceedings mightbe used in this context, we are not aware of any authorityrequiring such procedure. In the case at bench, petitionersconsulted with and relied on the decisions of the immediatefamily, which included the patient’s wife and several of hischildren. No formal guardianship proceedings wereinstituted.

….The authorities are in agreement that any surrogate, court

appointed or otherwise, ought to be guided in his or herdecisions first by his knowledge of the patient’s owndesires and feelings, to the extent that they were expressedbefore the patient became incompetent.…

If it is not possible to ascertain the choice the patientwould have made, the surrogate ought to be guided in hisdecision by the patient’s best interests. Under this standard,such factors as the relief of suffering, the preservation orrestoration of functioning and the quality as well as theextent of life sustained may be considered. Finally, sincemost people are concerned about the well-being of theirloved ones, the surrogate may take into account the impactof the decision on those people closest to the patient.…


There was evidence that Mr. Herbert had, prior to hisincapacitation, expressed to his wife his feeling that hewould not want to be kept alive by machines or “becomeanother Karen Ann Quinlan.” The family made its decisiontogether (the directive to the hospital was signed by thewife and eight of his children) after consultation with thedoctors.

Under the circumstances of this case, the wife was theproper person to act as a surrogate for the patient with theauthority to decide issues regarding further treatment, andwould have so qualified had judicial approval been sought.There is no evidence that there was any disagreementamong the wife and children. Nor was there any evidencethat they were motivated in their decision by anything otherthan love and concern for the dignity of their husband andfather.

Furthermore, in the absence of legislative guidance, wefind no legal requirement that prior judicial approval isnecessary before any decision to withdraw treatment can bemade.

Despite the breadth of its language, Barber does not disposeof the issue of who can consent, due to the way in which thecase arose — reliance on requests from the family of thepatient as a defense to a charge of murder against the doctorswho removed the patient’s life support. Note also that thecourt is not in a position to determine issues such as who isincluded in the patient’s “family.” It is implicit in the casethat the wife, children, and sister-in-law were all familymembers. However, the court’s statement that the “wife wasthe proper person to act as a surrogate for the patient” basedon the assumption she would have been qualified if judicialapproval had been sought, is not completely consistent withother statements referring to the “family’s decision” and thatthe “wife and children were the most obviously appropriatesurrogates,” and speculation on what would have happened if“the family had insisted on continued treatment.”

Nevertheless, Barber has been characterized as an“enormously important” decision: “Indeed, literature gener-


ated from within the medical community indicates that healthcare providers rely upon Barber — presumably every day —in deciding together with families to forego treatment for per-sistently vegetative patients who have no reasonable hope ofrecovery.”42

Current Practice: LACMA-LACBA Pamphlet

In the mid-1980s, the Joint Committee on BiomedicalEthics of the Los Angeles County Medical Association(LACMA) and Los Angeles County Bar Association(LACBA) issued and has since updated a pamphlet entitled“Guidelines: Forgoing Life-Sustaining Treatment for AdultPatients.” It is expected that the Guidelines are widely reliedon by medical professionals and are an important statement ofcustom and practice in California. The Guidelines were citedin Bouvia and Drabick. A 1993 addendum to the Guidelines,pertaining to decisionmaking for incapacitated patients with-out surrogates, provides a concise statement of the “RelevantLegal and Ethical Principles”:

The process suggested in these Guidelines has beendeveloped in light of the following principles establishedby the California courts and drawn from the Joint Commit-tee’s Guidelines for Forgoing Life-Sustaining Treatmentfor Adult Patients:

(a) Competent adult patients have the right to refusetreatment, including life-sustaining treatment, whether ornot they are terminally ill.

(b) Patients who lack capacity to make healthcare deci-sions retain the right to have appropriate medical decisionsmade on their behalf, including decisions regarding life-sustaining treatment. An appropriate medical decision isone that is made in the best interests of the patient, not thehospital, the physician, the legal system, or someone else.

42. Conservatorship of Drabick, 200 Cal. App. 3d 185, 198, 245 Cal. Rptr.840 (1988).


(c) A surrogate decision-maker is to make decisions forthe patient who lacks capacity to decide based on theexpressed wishes of the patient, if known, or based on thebest interests of the patient, if the patient’s wishes are notknown.

(d) A surrogate decision-maker may refuse life support onbehalf of a patient who lacks capacity to decide where theburdens of continued treatment are disproportionate to thebenefits. Even a treatment course which is only minimallypainful or intrusive may be disproportionate to the potentialbenefits if the prognosis is virtually hopeless for any signif-icant improvement in the patient’s condition.

(e) The best interests of the patient do not require that lifesupport be continued in all circumstances, such as when thepatient is terminally ill and suffering, or where there is nohope of recovery of cognitive functions.

(f) Physicians are not required to provide treatment thathas been proven to be ineffective or will not provide abenefit.

(g) Healthcare providers are not required to continue lifesupport simply because it has been initiated.

Current Practice: Patient Information Pamphlet

A patient information pamphlet (“Your Right To MakeDecisions About Medical Treatment”) has been prepared bythe California Consortium on Patient Self-Determination andadopted by the Department of Health Services for distributionto patients at the time of admission. This is in compliancewith the federal Patient Self-Determination Act of 1990. ThePSDA requires the pamphlet to include a summary of thestate’s law on patients’ rights to make medical treatmentdecisions and to make advance directives. The Californiapamphlet contains the following statement:

What if I’m too sick to decide?If you can’t make treatment decisions, your doctor will

ask your closest available relative or friend to help decidewhat is best for you. Most of the time, that works. Butsometimes everyone doesn’t agree about what to do. That’s


why it is helpful if you say in advance what you want tohappen if you can’t speak for yourself. There are severalkinds of “advance directives” that you can use to say whatyou want and who you want to speak for you.

Based on the case law, the Commission is not confident thatCalifornia law says the closest available relative or friend canmake health care decisions. However, it is likely in practicethat these are the persons doctors will ask, as stated in thepamphlet.43

Alternative Approaches to Statutory Surrogate Priorities

The general understanding is that close relatives and friendswho are familiar with the patient’s desires and values shouldmake health care decisions in consultation with medical pro-fessionals. Wives, brothers, mothers, sisters-in-law, anddomestic partners have been involved implicitly as “family”surrogate decisionmakers in reported California cases. Thepractice, as described in authoritative sources, is consistentwith this understanding. Courts and legislatures nationwidenaturally rely on a family or next-of-kin approach becausethese are the people who are presumed to best know the

43. See also American Medical Ass’n, Code of Medical Ethics § 2.20, at 40(1997-98) (“[W]hen there is no person closely associated with the patient, butthere are persons who both care about the patient and have sufficient relevantknowledge of the patient, such persons may be appropriate surrogates.”); Cali-fornia Healthcare Ass’n, Consent Manual: A Reference for Consent and RelatedHealth Care Law 2-18 (23d ed. 1996) (“In some circumstances, it may be neces-sary or desirable to rely upon the consent given by the incompetent patient’s‘closest available relative.’ The validity of such consent cannot be stated withcertainty, but the California Supreme Court has indicated that in some cases it isappropriate for a relative to give consent.” [citing Cobbs v. Grant]); President’sComm’n etc., Deciding To Forego Life-Sustaining Treatment 126-27 (1983)(“When a patient lacks the capacity to make a decision, a surrogate decision-maker should be designated. Ordinarily this will be the patient’s next of kin,although it may be a close friend or another relative if the responsible health careprofessional judges that this other person is in fact the best advocate for thepatient’s interests.”).


desires of the patient and to determine the patient’s bestinterests.44

Priority schemes among relatives and friends seem natural.Intestate succession law45 provides a ready analogy — thus,the spouse, children, parents, siblings, and so forth, seem tobe a natural order. The same order is established in the prefer-ence for appointment as conservator.46 But the analogybetween health care, life-sustaining treatment, and personalautonomy, on one hand, and succession to property, on theother, is weak. A health care decision cannot be parceled outlike property in an intestate’s estate. The consequences of aserious health care decision are different in kind from deci-sions about distributing property.

The trend in other states is decidedly in favor of providingstatutory guidance, generally through a priority scheme. Thecollective judgment of the states would seem to be that, sincemost people will not execute any form of advance directive,the problem needs to be addressed with some sort of defaultrules, perhaps based on an intestate succession analogy. Asdescribed by Professor Meisel:47

The primary purpose of these statutes is to make clearwhat is at least implicit in the case law: that the customarymedical professional practice of using family members tomake decisions for patients who lack decisionmakingcapacity and who lack an advance directive is legally valid,and that ordinarily judicial proceedings need not be initi-ated for the appointment of a guardian. Another purpose ofthese statutes is to provide a means, short of cumbersomeand possibly expensive guardianship proceedings, for des-ignating a surrogate decisionmaker when the patient has noclose family members to act as surrogate.

44. See generally 2 A. Meisel, The Right to Die §§ 14.1-14.10 (2d ed. 1995).

45. Prob. Code § 6400 et seq.

46. Prob. Code § 1812.

47. 2 A. Meisel, The Right to Die § 14.1, at 249-50 (2d ed. 1995).


The UHCDA scheme lists the familiar top four classes ofsurrogates (spouse, children, parents, siblings), but is lessrestrictive than many state statutes in several respects:48

(1) Class members may act as surrogate and need to assumeauthority to do so. It is not clear whether a class member mustaffirmatively decline to act or may be disregarded if he or shefails to assume authority, but unlike some state statutes, anabstaining class member does not prevent action.

(2) Determinations within classes can be made by majorityvote under the UHCDA. This is not likely to be a commonapproach to making decisions where there are disagreements,but could be useful to validate a decision of a majority wherethere are other class members whose views are unknown or indoubt.

(3) Orally designated surrogates are first on the UHCDApriority list, in an attempt to deal with the fact that a strictstatutory priority list does not necessarily reflect reality. The“orally designated surrogate was added to the Act not becauseits use is recommended but because it is how decision makersare often designated in clinical practice.”49

(4) The authorization for adults who have “exhibited specialcare and concern” is relatively new. Under the common law,the status of friends as surrogates is, in Professor Meisel’swords, “highly uncertain.”50 In a special procedure applicable

48. UHCDA § 5.

49. English, Recent Trends in Health Care Decisions Legislation 17 (1998)(unpublished manuscript, on file with California Law Revision Commission).

50. 2 A. Meisel, The Right to Die §14.4, at 51 (2d ed. Supp. #1 1997). But cf.Conservatorship of Drabick, 200 Cal. App. 3d 185, 204, 245 Cal. Rptr. 840(1988) (“[F]aced with a persistently vegetative patient and a diagnosis establish-ing that further treatment offers no reasonable hope of returning the patient tocognitive life, the decision whether to continue noncurative treatment is an ethi-


to “medical interventions” in nursing homes, California lawrequires consultation with friends of nursing home patientsand authorizes a friend to be appointed as the patient’s repre-sentative,51 but the health care decision is made by an“interdisciplinary team.”

Statutory Surrogates Under Proposed Law

The Commission concludes that a rigid priority schemebased on an intestate succession analogy would be toorestrictive and not in accord with the fundamental principlethat decisions should be based on the patient’s desires or,where not known, should be made in the patient’s best inter-est. The focus of statutory surrogacy rules should be to pro-vide some needed clarity without creating technical rules thatwould make compliance confusing or risky, thereby boggingthe process down or paralyzing medical decisionmaking. Justas California courts have consistently resisted judicialinvolvement in health care decisionmaking, except as a lastresort, the statutory surrogacy scheme should assist, ratherthan disrupt, existing practice.

Professor Meisel describes this fundamental problem withpriority classes as follows:52

Although the intent of such priority lists is a good one —to eliminate possible confusion about who has the legalauthority to make decisions for incompetent patients — theresult of surrogate-designation pursuant to statute is notonly mechanical but can be contrary or even inimical to the

cal one for the physicians and family members or other persons who are makinghealth care decisions for the patient.”).

51. Health & Safety Code § 1418.8. For the purposes of this section, subdivi-sion (c) lists “next of kin” as a person with “legal authority to make medicaltreatment decisions.” See also Rains v. Belshé, 32 Cal. App. 4th 157, 166, 38Cal. Rptr. 2d 185 (1995) (upholding the procedure and citing with approval theduty to consult with friends and the participation of the patient representative).

52. 2 A. Meisel, The Right to Die § 14.4 at 255 (2d ed. 1995) (footnotesomitted).


patient’s wishes or best interests. This would occur, forexample, if the patient were estranged from his spouse orparents. However, it is not clear that the result would bemuch different in the absence of a statute because the ordi-nary custom of physicians sanctioned by judicial decision,is to look to incompetent patients’ close family members tomake decisions for them. In the absence of a statute, thephysician might ignore a spouse known to be estrangedfrom the patient in favor of another close family member assurrogate, but because there is nothing in most statutes topermit a physician to ignore the statutory order of priority,the result could be worse under a statute than in its absence.

In recognition of the problems as well as the benefits of apriority scheme, the proposed law sets out a default list ofadult statutory surrogates: (1) The spouse, unless legally sepa-rated, (2) a domestic partner,53 (3) children, (4) parents, (5)brothers and sisters, (6) grandchildren, and (7) close friends.

As a general rule, the primary physician is required to selectthe surrogate, with the assistance of other health careproviders or institutional committees, in the order of priorityset out in the statute. However, where there are multiple pos-sible surrogates at the same priority level, the primary physi-cian has a duty to select the individual who reasonablyappears after a good faith inquiry to be best qualified.54 Theprimary physician may select as the surrogate an individualwho is positioned lower in statutory list if, in the primaryphysician’s judgment, the individual is best qualified to serve

53. Proposed Probate Code Section 4712(a)(2) defines this class as follows:“An adult in a long-term relationship of indefinite duration with the patient inwhich the individual has demonstrated an actual commitment to the patient simi-lar to the commitment of a spouse and in which the individual and the patientconsider themselves to be responsible for each other’s well-being and reside orhave been residing together.…”

54. The recommended procedure is drawn, in part, from West Virginia law.See W.Va. Code § 16-30B-7 (Westlaw 1999). Elements are also drawn fromNew Mexico’s implementation of the UHCDA. See N.M. Stat. Ann. § 24-7A-5(Westlaw 1998).


as the patient’s surrogate. These rules are directly related tothe fundamental principal that the law should attempt to findthe best surrogate — the person who can make health caredecisions according to the patient’s known desires or in thepatient’s best interest.

Providing flexibility based on fundamental principles ofself-determination and ethical standards ameliorates thedefects of a rigid priority scheme. The procedure for varyingthe default priority rules is not arbitrary, but subject to a set ofimportant statutory standards. In determining which listedperson is best qualified to serve as the surrogate, the followingfactors must be considered:

(1) Whether the proposed surrogate appears to be bestable to make decisions in accordance with the statutorystandard (patient’s instructions, if known, or if not known,patient’s best interest, taking into account personal values).

(2) The degree of the person’s regular contact with thepatient before and during the patient’s illness.

(3) Demonstrated care and concern for the patient.(4) Familiarity with the patient’s personal values.(5) Availability to visit the patient.(6) Availability to engage in face-to-face contact with

health care providers for the purpose of fully participatingin the health care decisionmaking process.

In addition, the process of applying these standards and mak-ing the determination must be documented in the patient’smedical record. The surrogate is required to communicate hisor her assumption of authority to other family members,including the spouse, domestic partner, adult children, par-ents, and adult siblings of the patient.

The recommended procedure also reduces the problem ofresolving differences between potential surrogates. There canbe problems under the existing state of law and custom, asillustrated by cases where family members — e.g., children,parents, or the patient’s spouse — compete for appointment


as conservator of an incapacitated person. These disputes willstill occur and it is difficult to imagine a fair and flexiblestatutory procedure that could resolve all issues.

As discussed, the UHCDA provides a fixed priority schemebetween classes of close relatives and provides for votingwithin a class with multiple members.55 If a class is dead-locked, then the surrogacy procedure comes to a halt; lowerclasses do not get an opportunity to act, although it is possiblefor a higher class to reassert its priority, and the evenly splitclass could resolve the deadlock over time. This type of pro-cedure seems overly mechanical and lacking in neededflexibility.

The Commission also considered a family consensusapproach, such as that provided under Colorado law.56 In thisprocedure, the class of potential surrogates, composed ofclose family members and friends, is given the responsibilityand duty to select a surrogate from among their number. It isdifficult to judge how well this type of procedure would workin practice. The concern is that it might result in too muchconfusion and administrative burden, without improving theprospects for effective decisionmaking or resolving disputes.But there is nothing in the proposed law that would prevent afamily from voluntarily acting in this fashion, and it is likelythat the selected surrogate would satisfy the standards of theflexible priority scheme.

The proposed law adopts a presumptive “pecking order”like the UHCDA, but places the responsibility on the primaryphysician to select the best-situated person based on standardsset out in the statute. This avoids the rigidity of the UHCDAapproach and the indefiniteness and administrative burden of

55. UHCDA § 5.

56. See Colo. Rev. Stat. Ann. § 15-18.5-103 (West 1997). Illinois andLouisiana also implement some consensus standards. See generally, 2 A. Meisel,The Right to Die § 14.1 et seq. (2d ed. 1995 & Supp. #1 1997).


the consensus approach. Notice of the selection should begiven to other family members. The surrogate is required tocommunicate the assumption of surrogate’s authority to otheradults in the first five categories of statutory surrogates:spouse, domestic partner, children, parents, and siblings.Potential surrogates or other interested persons with seriousobjections to the selection of the surrogate or the decisionsbeing made by the surrogate would still have the right tobring a judicial challenge57 or seek appointment of aconservator.

Like the UHCDA, the proposed law gives priority over thestatutory list to a surrogate who has been designated by thepatient.

DECISIONMAKING WHERE NOSURROGATE IS AVAILABLE

The law does not address one of the most important prob-lems if it stops at providing rules on advance directives and“family consent.” The statutory surrogate rules will not applyto a significant group of incapacitated adults for whom thereare no potential surrogates because they have no close rela-tives or friends familiar with their health care treatmentdesires or values, or because potential surrogates are unwill-ing or unable to make decisions. While the conservatorshipstatutes provide a remedy of last resort, practically speaking,the conservatorship rules can be cumbersome, inefficient, andexpensive, and do not provide the answer in most cases.

Existing law addresses this problem with respect to“medical interventions” involving patients in the nursinghome context,58 but there is no general surrogacy rule appli-


58. Health & Safety Code § 1418.8. See Rains v. Belshé, 32 Cal. App. 4th157, 166, 170, 38 Cal. Rptr. 2d 185 (1995) (upholding the constitutionality ofthe procedure for patients in nursing homes who lack capacity to make health


cable in these circumstances. The UHCDA does not addressthis problem.

The alternative of appointing a conservator of the person ineach of these cases is not an adequate solution to the problem,as recognized by the Legislature when it enacted the nursinghome medical intervention procedure.59 While it is possible toseek court approval for medical “treatment” under ProbateCode Section 3200 et seq. (authorization of medical treatmentfor adult without conservator), this procedure does not explic-itly authorize orders for withdrawal of treatment or refusal ofconsent.60

The proposed law adopts a procedure based in large part onthe nursing home medical intervention procedure, but withsome important additional protections. Under this proposal,health care decisions for the “friendless” incapacitated adultcould be made by a “surrogate committee.” It is expected thathospitals and nursing homes will establish a surrogate com-mittee, to take advantage of the statute. In a situation wherethere is no institutionally founded surrogate committee, or inthe rare case where a health care decision needs to be madeand there is no institution involved, the proposed law grantsauthority to the county health officer or county supervisors toestablish a surrogate committee.

The basic committee would be made up of the followingthree persons:

(1) The patient’s primary physician.

care decisions, “even though they do not have a next of kin, an appointed con-servator, or another authorized decision maker to act as their surrogate”).

59. In most cases, the conservator will be the Public Guardian, which may bea non-solution if the Public Guardian’s policy is not to exercise the duty todecide as set down in Drabick and make an individualized assessment for eachpatient.

60. Probate Code Section 3208 refers to “authorizing the recommendedcourse of medical treatment of the patient” and “the existing or continuing medi-cal condition.”


(2) A professional nurse with responsibility for the patientand with knowledge of the patient’s condition.

(3) A patient representative or community member. Thepatient representative may be a family member or friend ofthe patient who is unable to take full responsibility for thepatient’s health care decisions, but has agreed to serve onthe surrogate committee. A community member is an adultwho is not employed by or regularly associated with theprimary physician, the health care institution, or employeesof the health care institution.

But in cases involving withholding or withdrawing life-sustaining treatment or other critical health care decisions, thesurrogate committee would also be required to include amember of the health care institution’s ethics committee or anoutside ethics consultant.

The surrogate committee under the proposed law isintended to require the degree of expertise and participationappropriate to the type of health care decision that needs to bemade. The proposal provides minimum guidelines and is notintended to restrict participation by other appropriate persons,including health care institution staff in disciplines as deter-mined by the patient’s needs. The participation of the institu-tional ethics committee or an outside ethics consultant con-forms to the best practice in life-sustaining treatment situa-tions. The inclusion of outside representatives (the patientrepresentative or community member) and, in critical cases,an ethics advisor, provides important protections that are notapplicable under the existing nursing home medical interven-tion scheme.

In reviewing proposed health care decisions, the surrogatecommittee would be required to consider and review all of thefollowing factors:

(1) The primary physician’s assessment of the patient’scondition.

(2) The reason for the proposed health care decision.


(3) The desires of the patient, if known. To determine thedesires of the patient, the surrogate committee must inter-view the patient, review the patient’s medical records, andconsult with family members or friends, if any have beenidentified.

(4) The type of health care to be used in the patient’scare, including its probable frequency and duration.

(5) The probable impact on the patient’s condition, withand without the use of the proposed health care.

(6) Reasonable alternative health care decisions consid-ered or utilized, and reasons for their discontinuance orinappropriateness.

The surrogate committee is required to evaluate the results ofapproved health care decisions periodically, as appropriateunder applicable standards of care.

The proposed law intends the surrogate committee to try tooperate on a consensus basis. If consensus cannot be reached,the committee is authorized to approve proposed health caredecisions by majority vote. There is an important exception:health care decisions relating to withholding or withdrawinglife-sustaining treatment cannot be implemented if any mem-ber of the surrogate committee is opposed. If a surrogatecommittee becomes hopelessly deadlocked, resort to judicialproceedings may be necessary.

STANDARDS FOR SURROGATE DECISIONMAKING

The existing power of attorney for health care law requiresthe attorney-in-fact to “act consistent with the desires of theprincipal as expressed in the durable power of attorney orotherwise made known to the attorney-in-fact at any time or,if the principal’s desires are unknown, to act in the best inter-ests of the principal.”61

The UHCDA adopts the same rule as a general standard forall surrogates:

61. Prob. Code § 4720(c).


[T]he Act seeks to ensure to the extent possible that deci-sions about an individual’s health care will be governed bythe individual’s own desires concerning the issues to beresolved. The Act requires an agent or surrogate authorizedto make health-care decisions for an individual to makethose decisions in accordance with the instructions andother wishes of the individual to the extent known. Other-wise, the agent or surrogate must make those decisions inaccordance with the best interest of the individual but inlight of the individual’s personal values known to the agentor surrogate. Furthermore, the Act requires a guardian tocomply with a ward’s previously given instructions andprohibits a guardian from revoking the ward’s advancehealth-care directive without express court approval.

The proposed law, like the UHCDA, applies these standardsgenerally throughout the statute. Thus, the same fundamentalstandard will apply to all surrogate health care decision-makers: agents under powers of attorney, surrogates desig-nated by the patient, family and friends who can act as surro-gates under general principles codified in the statutory surro-gate rules, surrogate committees acting for the “friendless”patient, private conservators and Public Guardians acting forconservatees without the capacity to make health care deci-sions,62 and courts deciding cases under the court-authorizedhealth care procedure.63

DUTIES OF HEALTH CARE PROVIDERS AND OTHERS

The proposed law sets out a number of specific duties ofhealth care providers, drawn from the UHCDA,64 that aremore detailed than existing law. A fundamental feature of theuniform act is reliance on health care professionals to makenecessary determinations and to comply with advance direc-



64. UHCDA § 7.


tives and health care decisions made by surrogates. Thus, theproposed law requires communication with the patient, entryin the patient’s medical records of the existence of an advancedirective (including a copy) or a surrogate designation, and ofany revocation or modification. The recordkeeping duties areextremely important since, in the clinical setting, the patient’srecords provide the best means to make advance directivesand surrogate designations effective.

The proposed law requires the health care provider andinstitution to comply with the patient’s advance directive, andwith health care decisions made by the patient’s surrogatedecisionmaker, to the same extent as if the patient made thedecision while having capacity.65 However, a health careprovider may lawfully decline to comply for reasons of con-science or institutional policy. This rule, drawn from theUHCDA,66 is consistent with the Natural Death Act and caselaw.67 If the health care provider declines to comply, how-ever, there is a duty to transfer the patient to another healthcare institution.

Another important limitation on the health care provider’sduty to comply is recognized in the proposed law. The healthcare provider or institution may decline to provide medicallyineffective care or care that is contrary to generally acceptedhealth care standards.68 As in other cases where compliancecan be refused, the health care provider and institution have aduty to provide continuing care until a transfer can beaccomplished or until it appears that a transfer cannot be

65. These duties are not specified, although they are implicit, in the existinglaw on durable powers of attorney for health care. See Prob. Code § 4720. Aduty to comply with a directive or transfer the patient is provided in the NaturalDeath Act. See Health & Safety Code § 7187.5 (2d sentence).

66. UHCDA § 7(e).

67. Health & Safety Code § 7190; Conservatorship of Morrison, 206 Cal.App. 3d 304, 310-12, 253 Cal. Rptr. 530 (1988).

68. This is drawn from UHCDA Section 7(f).


accomplished. But in all cases, appropriate palliative caremust be provided.

LIABILITIES OF HEALTH CAREPROVIDERS AND OTHERS

The existing law governing durable powers of attorney forhealth care provides protection from criminal prosecution,civil liability, and professional disciplinary action for healthcare providers who in good faith rely on the decision of anattorney-in-fact in circumstances where in good faith thehealth care provider believes the decision is consistent withthe desires and best interests of the principal.69 Similarly, theNatural Death Act protects health care providers who complywith a declaration in good faith and in accordance with rea-sonable medical standards.70

The proposed law combines and generalizes these rules, in aform drawn from the UHCDA.71 Health care providers andinstitutions are protected for actions taken under the law ifthey act in good faith and in accordance with generallyaccepted health care standards applicable to them. Specifi-cally listed are compliance with a health care decision by aperson apparently having authority to make the decision,declining to comply where a person does not appear to haveauthority, and complying with an advance directive assumedto be validly executed and not revoked.

The proposed law provides new statutory penalties, basedon the UHCDA,72 for intentional violation of the law in theamount of $2500 or actual damages, whichever is greater,plus attorney’s fees. Any person who intentionally forges,

69. Prob. Code § 4750.

70. Health & Safety Code § 7190.5.

71. UHCDA § 9(a).

72. UHCDA § 10.


conceals, or destroys an advance directive or revocation with-out consent, or who coerces or fraudulently induces a personto give, revoke, or refrain from giving an advance directive issimilarly liable in the amount of $10,000. The statutory penal-ties are in addition to any other remedies that may exist in tortor contract, and to criminal penalties and professionaldiscipline.

JUDICIAL REVIEW

California law does not favor judicial involvement in healthcare decisionmaking. The Power of Attorney Law provides asa general rule that a power of attorney is exercisable free ofjudicial intervention.73 The Natural Death Act declares that“in the absence of a controversy, a court normally is not theproper forum in which to make decisions regarding life-sus-taining treatment.”74 In connection with incapacitated patientsin nursing homes, the Legislature has found:75

The current system is not adequate to deal with the legal,ethical, and practical issues that are involved in makinghealth care decisions for incapacitated skilled nursing facil-ity or intermediate care facility residents who lack surro-gate decisionmakers. Existing Probate Code procedures,including public conservatorship, are inconsistently inter-preted and applied, cumbersome, and sometimes unavail-able for use in situations in which day-to-day medicaltreatment decisions must be made on an on-going basis.

Appellate decisions also caution against overinvolvement ofcourts in the intensely personal realm of health care deci-sionmaking. However, there may be occasions where a dis-pute must be resolved and an appropriately tailored procedureis needed.

73. Prob. Code § 4900.

74. Health & Safety Code § 7185.5(e).

75. 1992 Cal. Stat. ch. 1303, § 1(b).


The UHCDA takes a similar hands-off approach:76

[T]he Act provides a procedure for the resolution of dis-putes. While the Act is in general to be effectuated withoutlitigation, situations will arise where resort to the courtsmay be necessary. For that reason, the Act authorizes thecourt to enjoin or direct a health-care decision or orderother equitable relief and specifies who is entitled to bring apetition.

The proposed law contains a procedure drawn largely fromthe Power of Attorney Law.77 Under this procedure, any ofthe following persons may file a petition in the superior court:the patient, the patient’s spouse (unless legally separated), arelative of the patient, the patient’s agent or surrogate(including a member of a surrogate committee), the conserva-tor of the person of the patient, a court investigator, the publicguardian of the county where the patient resides, the supervis-ing health care provider or health care institution, and anyother interested person or friend of the patient. As under exist-ing law, there is no right to a jury trial.78

The grounds for a petition are broad, but not unlimited, andinclude determining (1) whether the patient has capacity tomake health care decisions, (2) whether an advance healthcare directive is in effect, and (3) whether the acts or pro-posed acts of an agent or surrogate (including a surrogatecommittee) are consistent with the patient’s desires asexpressed in an advance health care directive or otherwisemade known to the court or, where the patient’s desires are

76. UHCDA Prefatory Note.

77. See Prob. Code §§ 4900-4947. Because of the placement of the HealthCare Decisions Law beginning at Section 4600, the judicial proceedings provi-sions (Part 5) applicable to non-health care powers of attorney are moved toform a new Part 4 (commencing with Section 4500). The law applicable to non-health care powers remains the same; only the special provisions concerninghealth care powers of attorney would be removed.

78. Prob. Code § 4904.


unknown or unclear, whether the acts or proposed acts of theagent or surrogate are in the patient’s best interest.

When capacity is to be determined in judicial proceedings,the provisions of the Due Process in Capacity DeterminationsAct79 are applicable. The standard for reviewing the agent’sor surrogate’s actions is consistent with the general standardapplicable under the proposed Health Care Decisions Law, asalready discussed.80

COURT-AUTHORIZED MEDICAL TREATMENT

The court-authorized medical treatment procedure wasenacted on Commission recommendation in 1979.81 The orig-inal intent of this procedure, as described in the Commis-sion’s Comment preceding Probate Code Section 3200, wasas follows:

The provisions of this part afford an alternative to estab-lishing a conservatorship of the person where there is noongoing need for a conservatorship. The procedural rules ofthis part provide an expeditious means of obtaining autho-rization for medical treatment while safeguarding basicrights of the patient: The patient has a right to counsel.…

79. Prob. Code §§ 810-813.

80. See supra text accompanying note 61.

81. Prob. Code §§ 3200-3211, enacted by 1979 Cal. Stat. ch. 726, § 3; Rec-ommendation Relating to Guardianship-Conservatorship Law, 14 Cal. L. Revi-sion Comm’n Reports 501, 577-78 (1978); Guardianship-Conservatorship Lawwith Official Comments, 15 Cal. L. Revision Comm’n Reports 451, 540-41, 870-76 (1980). The procedure was repealed and reenacted in 1990 when the newProbate Code replaced the former Probate Code. See 1990 Cal. Stat. ch. 79, §14. Coverage was extended to mental health, operative in 1991. See 1990 Cal.Stat. ch. 710, § 12; Recommendation Relating to Court-Authorized MedicalTreatment, 20 Cal. L. Revision Comm’n Reports 537 (1990).

Some additional amendments have been made to the original procedure,mainly as a result of the Due Process in Competency Determinations Act(DPCDA) (1995 Cal. Stat. ch. 842, §§ 9-11), which revised the procedural rulesin Sections 3201, 3204, and 3208 related to determinations of capacity to makehealth care decisions (“give informed consent”).


The hearing is held after notice to the patient, the patient’sattorney, and such other persons as the court orders.… Thecourt may determine the issue on medical affidavits alone ifthe attorney for the petitioner and the attorney for thepatient so stipulate.… The court may not order medicaltreatment under this part if the patient has capacity to giveinformed consent to the treatment but refuses to do so.…

The authority of the court, or a surrogate appointed by thecourt, to authorize medical treatment under the Section 3200procedure is not as broad as a conservator with full powers,an agent under a power of attorney for health care, or a statu-tory surrogate under the proposed Health Care DecisionsLaw. Where the conservatee has been adjudicated to lack thecapacity to give informed consent to medical treatment, aconservator under Section 2355 can authorize removal of life-sustaining treatment (i.e., refuse consent to further treatment),if the decision is made in good faith and is based on appro-priate medical advice.82

The Section 3200 procedure has not been interpreted by theappellate courts to permit withholding or withdrawing lifesupport. The statutory language is clearly directed towardcare needed to maintain health. It permits an order authorizingthe “recommended course of medical treatment” and“designating a person to give consent to the recommendedcourse of medical treatment” if all of the following are deter-mined from the evidence:83

(1) The existing or continuing medical condition of thepatient requires the recommended course of medicaltreatment.

(2) If untreated, there is a probability that the conditionwill become life-endangering or result in a serious threat tothe physical or mental health of the patient.

82. Conservatorship of Drabick, 200 Cal. App. 3d 185, 216-17, 245 Cal. Rptr.840 (1988); see also Conservatorship of Morrison, 206 Cal. App. 3d 304, 309-10, 253 Cal. Rptr. 530 (1988).

83. Prob. Code § 3208.


(3) The patient is unable to give an informed consent tothe recommended course of treatment.

The reference to the probability that the condition willbecome life-endangering is not designed to address the situa-tion of the patient in a persistent vegetative state whose con-tinued existence is not seriously threatened. Since the Section3200 procedure was not designed to deal with end-of-lifedecisionmaking, there is no statutory procedure available formaking decisions in the best interest of a patient in a persis-tent vegetative state, short of appointment of a conservatorwith full powers under Section 2355. Appointment of a con-servator is usually not a feasible alternative because of theexpense and the lack of a person willing to serve as the con-servator of the person.

The proposed law would remedy this problem by amendingthe court-authorized medical treatment procedure to coverwithholding or withdrawing life-sustaining treatment. Theserevisions would make the court’s authority to order treatment(or appoint a person to make health care decisions) consistentwith the scope of other surrogates’ authority under the pro-posed Health Care Decisions Law. While the proposed lawmakes clear, consistent with case law, that resort to the courtsis disfavored, and should only be a last resort when all othermeans of resolving the issue have failed, the law still needs toprovide an effective and consistent remedy for the difficultcases that cannot be resolved short of judicial proceedings.

CONSERVATOR’S RESPONSIBILITY TOMAKE HEALTH CARE DECISIONS

As discussed above, the proposed law adopts a generalstandard for making health care decisions by surrogates,including conservators, both private and public. The Com-mission is not proposing in this recommendation to overhaulthe health care provisions in the Guardianship-Conservator-


ship Law.84 However, it is important to conform ProbateCode Section 2355 governing health care decisions for con-servatees who have been adjudged to lack capacity to makehealth care decisions. The amendments adopt some terminol-ogy of the proposed law, so that it is clear that all health caredecisions are covered, including withholding and withdrawinglife-sustaining treatment, and adds the requirement that theconservator is to make decisions based on the conservatee’sdesires, if known, or based on a determination of the conser-vatee’s best interest, taking into account the conservatee’spersonal values known to the conservator.

The proposed revision is consistent with Conservatorship ofDrabick.85 Incapacitated patients

retain the right to have appropriate medical decisions madeon their behalf. An appropriate medical decision is one thatis made in the patient’s best interests, as opposed to theinterests of the hospital, the physicians, the legal system, orsomeone else.… To summarize, California law gives per-sons a right to determine the scope of their own medicaltreatment, this right survives incompetence in the sense thatincompetent patients retain the right to have appropriatedecisions made on their behalf, and Probate Code section2355 delegates to conservators the right and duty to makesuch decisions.

Use of the terms “health care” and “health care decision”from the proposed Health Care Decisions Law would makeclear that the scope of health care decisions that can be madeby a conservator under this procedure is the same as providedgenerally in the Health Care Decisions Law.

The importance of the existing statutory language concern-ing the exclusive authority of the conservator and the duty

84. See supra notes 11-13.

85. 220 Cal. App. 3d 185, 205, 245 Cal. Rptr. 840 (1988) (footnotes omitted).


this places on the conservator was also emphasized inDrabick:86

The statute gives the conservator the exclusive authority toexercise the conservatee’s rights, and it is the conservatorwho must make the final treatment decision regardless ofhow much or how little information about the conservatee’spreferences is available. There is no necessity or authorityfor adopting a rule to the effect that the conservatee’s desireto have medical treatment withdrawn must be proved byclear and convincing evidence or another standard.Acknowledging that the patient’s expressed preferences arerelevant, it is enough for the conservator, who must act inthe conservatee’s best interests, to consider them in goodfaith.

The intent of the rule in the proposed law is to protect andfurther the patient’s interest in making a health care decisionin accordance with the patient’s expressed desires, whereknown, and if not, to make a decision in the patient’s bestinterest, taking personal values into account. The necessarydeterminations are to be made by the conservator, whetherprivate or public, in accordance with the statutory standard.Court control or intervention in this process is neitherrequired by statute, nor desired by the courts.87

TECHNICAL MATTERS

Location of Proposed Law

The proposed Health Care Decisions Law would be locatedin the Probate Code following the Power of Attorney Law.There is no ideal location for a statute that applies both toincapacity planning options (e.g., the power of attorney forhealth care) and to standards governing health care decision-

86. Id. at 211-12.

87. See, e.g., Conservatorship of Morrison, 206 Cal. App. 3d 304, 312, 253Cal. Rptr. 530 (1988); Drabick, 200 Cal. App. 3d at 198-200.


making for incapacitated adults. But considering the alterna-tives, the Probate Code appears to be the best locationbecause of associated statutes governing conservatorship ofthe person, court-authorized medical treatment, and powers ofattorney. In addition, estate planning and elder law practition-ers are familiar with the Probate Code.

Severance from Power of Attorney Law

Drafting health care decisionmaking rules as a separatestatute should eliminate or minimize the numerous exceptionsand overlays in the Power of Attorney Law, thereby improv-ing the organization and usability of both the Power of Attor-ney Law as it relates to property and financial matters and thelaw relating to health care powers.88

Application to Out-of-State Advance Directives

Existing law recognizes the validity of certain advancedirectives executed under the law of another state, or executedoutside California in compliance with California law, both as

88. The general rule in Probate Code Section 4050 provides that the Power ofAttorney Law (PAL, Division 4.5 of the Probate Code) “applies to” varioustypes of powers of attorney, including DPAHCs under Part 4 (commencing withSection 4600). Section 4051 provides that the general agency rules in the CivilCode apply to “powers of attorney” unless the PAL provides a specific rule. Sec-tion 4100 provides that Part 2 governing “Powers of Attorney Generally” appliesto all powers under the division, subject to special rules applicable to DPAHCs.The general rules on creation and effect of powers of attorney are set out inSections 4120-4130, modification and revocation are governed by Sections4150-4155, qualifications and duties of attorneys-in-fact are in Sections 4200 —these rules apply in general to all types of powers.

Several PAL sections have special additional health care rules or excep-tions: §§ 4122(d) (witnesses), 4123(d) (permissible purposes), 4128(c)(2)(warning statement), 4152(a)(4) (exercise of authority after death of principal),4203(b) (attorney-in-fact’s authority to appoint successor), 4206(c) (relation tocourt-appointed fiduciary)). As an exception to the general rule, Section 4260provides that Article 3 (§§ 4260-4266) of Chapter 4 concerning authority ofattorneys-in-fact does not apply to DPAHCs.


to powers of attorney for health care89 and declarations of atype permitted by the Natural Death Act.90 The proposed lawconsolidates these rules and applies them to all writtenadvance directives, thus treating individual health careinstructions the same as powers of attorney.

Application to Pre-existing Instruments

The proposed law would apply to all advance directives, asbroadly defined in the new law, beginning on July 1, 2000. Itis unlikely that circumstances could arise where the new lawwould invalidate older powers of attorney or declarationsunder the Natural Death Act, but the proposed law makesclear that it does not affect the validity of an older instrumentthat was valid under existing law. The proposed law wouldnot revive instruments that are invalid under existing law.91

However, where a surrogate is required to take into accountthe wishes of a patient, it may be appropriate to consider andevaluate expressions of the patient’s health care preferencesstated in a now obsolete form.

OTHER PROCEDURES

DNR Orders

The proposed law continues the existing special proceduresgoverning requests to forgo resuscitative measures (DNRorders)92 with a few technical revisions for consistency with

89. Prob. Code § 4653; see also Section 4752 (presumption of validity regard-less of place of execution).

90. Health & Safety Code § 7192.5; see also Section 7192 (presumption ofvalidity).

91. For example, some durable powers of attorney for health care executedbetween January 1, 1984, and December 31, 1991, were subject to a seven-yearterm (which could be extended if the term expired when the principal was inca-pacitated). See Prob. Code § 4654. Practically speaking, it is virtually certainthat this class of powers will have expired by July 1, 2000.

92. See Prob. Code § 4753, enacted by 1994 Cal. Stat. ch. 966, § 3.


definitions under the Health Care Decisions Law. The Com-mission did not undertake a substantive review of the recentlyenacted DNR rules.

Secretary of State’s Registry

Existing law requires the Secretary of State to establish aregistry for durable powers of attorney.93 The registry isintended to provide information concerning the existence andlocation of a person’s durable power of attorney for healthcare. The registry is strictly voluntary. It has no effect on thevalidity of a power of attorney for health care,94 nor is ahealth care provider required to apply to the registry forinformation.95

The proposed law continues the registry provisions, but inthe interest of treating all advance health care directivesequally, provides for registration of individual health careinstructions on the same basis as powers of attorney for healthcare. The Commission has not evaluated the registry system,although the Commission is informed that as of late-1998there were fewer than 100 filings and no inquiries had beendirected to the registry system.

93. Prob. Code §§ 4800-4806. The registry was established pursuant to 1994Cal. Stat. ch. 1280.

94. Prob. Code §§ 4804-4805.

95. Prob. Code § 4806.

1999] 55


Structural Outline

DIVISION 4.7. HEALTH CARE DECISIONS .................... 61

PART 1. DEFINITIONS AND GENERAL ..................... 61

CHAPTER 1. SHORT TITLE AND DEFINITIONS ................ 61

CHAPTER 2. GENERAL PROVISIONS ....................... 73

CHAPTER 3. TRANSITIONAL PROVISIONS ................... 81

PART 2. UNIFORM HEALTH CARE DECISIONS ACT ........... 82

CHAPTER 1. ADVANCE HEALTH CARE DIRECTIVES ............ 82Article 1. General Provisions .......................... 82Article 2. Powers of Attorney for Health Care ............... 90Article 3. Revocation of Advance Directives ................ 96

CHAPTER 2. ADVANCE HEALTH CARE DIRECTIVE FORMS ....... 99

CHAPTER 3. HEALTH CARE SURROGATES.................. 111

CHAPTER 4. HEALTH CARE DECISIONS FOR PATIENTSWITHOUT SURROGATES ..................... 118

CHAPTER 5. DUTIES OF HEALTH CARE PROVIDERS ........... 123

CHAPTER 6. IMMUNITIES AND LIABILITIES ................. 128

PART 3. JUDICIAL PROCEEDINGS ....................... 132

CHAPTER 1. GENERAL PROVISIONS ...................... 132

CHAPTER 2. JURISDICTION AND VENUE ................... 135

CHAPTER 3. PETITIONS, ORDERS, APPEALS................. 137

PART 4. REQUEST TO FORGO RESUSCITATIVE MEASURES .... 142

PART 5. ADVANCE HEALTH CARE DIRECTIVE REGISTRY ..... 145

CONFORMING REVISIONS AND REPEALS................... 149

REVISED COMMENTS.................................. 227

TABLE SHOWING LOCATION OF UHCDA PROVISIONS ......... 243


Detailed Contents

DIVISION 4.7. HEALTH CARE DECISIONS .................... 61

PART 1. DEFINITIONS AND GENERAL ..................... 61

CHAPTER 1. SHORT TITLE AND DEFINITIONS ................ 61§ 4600. Short title ................................... 61§ 4603. Application of definitions ........................ 61§ 4605. Advance health care directive, advance directive ......... 62§ 4607. Agent...................................... 62§ 4609. Capacity .................................... 63§ 4611. Community care facility ......................... 63§ 4613. Conservator.................................. 64§ 4615. Health care .................................. 64§ 4617. Health care decision ............................ 65§ 4619. Health care institution ........................... 65§ 4621. Health care provider ............................ 66§ 4623. Individual health care instruction, individual instruction .... 67§ 4625. Patient ..................................... 67§ 4627. Physician ................................... 68§ 4629. Power of attorney for health care.................... 68§ 4631. Primary physician ............................. 68§ 4633. Principal.................................... 69§ 4635. Reasonably available ........................... 70§ 4637. Residential care facility for the elderly ................ 70§ 4639. Skilled nursing facility .......................... 71§ 4641. Supervising health care provider .................... 71§ 4643. Surrogate ................................... 72

CHAPTER 2. GENERAL PROVISIONS ....................... 73§ 4650. Legislative findings ............................ 73§ 4651. Scope of division .............................. 74§ 4652. Excluded acts ................................ 74§ 4653. Mercy killing, assisted suicide, euthanasia not approved .... 75§ 4654. Compliance with generally accepted health care standards ... 75§ 4655. Impermissible constructions ....................... 76§ 4656. Effect on death benefits .......................... 76§ 4657. Presumption of capacity ......................... 77§ 4658. Determination of capacity and other medical conditions..... 77§ 4659. Limitations on who may act as agent or surrogate......... 78§ 4660. Use of copies................................. 80

CHAPTER 3. TRANSITIONAL PROVISIONS ................... 81§ 4665. Application to existing advance directives and pending

proceedings................................ 81

1999] PROPOSED LAW 57

PART 2. UNIFORM HEALTH CARE DECISIONS ACT ........... 82

CHAPTER 1. ADVANCE HEALTH CARE DIRECTIVES ............ 82Article 1. General Provisions ............................. 82

§ 4670. Authority to give individual health care instruction ........ 82§ 4671. Authority to execute power of attorney for health care...... 83§ 4672. Nomination of conservator in written advance directive ..... 84§ 4673. Witnessing required in skilled nursing facility ........... 84§ 4674. Validity of written advance directive executed in another

jurisdiction ................................ 88§ 4675. Restriction on requiring or prohibiting advance directive .... 89§ 4676. Right to health care information .................... 89

Article 2. Powers of Attorney for Health Care .................. 90§ 4680. Formalities for executing a power of attorney for health

care ..................................... 90§ 4681. Limitations expressed in power of attorney for health care ... 91§ 4682. When agent’s authority effective .................... 92§ 4683. Scope of agent’s authority ........................ 92§ 4684. Standard governing agent’s health care decisions ......... 93§ 4685. Agent’s priority ............................... 94§ 4686. Duration .................................... 95§ 4687. Other authority of person named as agent not affected ...... 95§ 4688. Relation to general agency law ..................... 96

Article 3. Revocation of Advance Directives ................... 96§ 4695. Revocation of advance health care directive ............ 96§ 4696. Duty to communicate revocation .................... 97§ 4697. Effect of dissolution or annulment ................... 98§ 4698. Effect of later advance directive on earlier advance

directive .................................. 98

CHAPTER 2. ADVANCE HEALTH CARE DIRECTIVE FORMS ....... 99§ 4700. Authorization for statutory form of advance directive ...... 99§ 4701. Optional form of advance directive .................. 99

CHAPTER 3. HEALTH CARE SURROGATES.................. 111§ 4710. Authority of surrogate to make health care decisions ...... 111§ 4711. Patient’s designation of surrogate .................. 112§ 4712. Selection of statutory surrogate .................... 113§ 4713. Selection of statutory surrogate .................... 115§ 4714. Standard governing surrogate’s health care decisions ..... 116§ 4715. Disqualification of surrogate...................... 117§ 4716. Reassessment of surrogate selection................. 117

CHAPTER 4. HEALTH CARE DECISIONS FOR PATIENTSWITHOUT SURROGATES ..................... 118

§ 4720. Application of chapter.......................... 118§ 4721. Referral to surrogate committee ................... 118


§ 4722. Composition of surrogate committee ................ 119§ 4723. Conduct and standards of review by surrogate committee... 120§ 4724. Decisionmaking by surrogate committee.............. 121§ 4725. General surrogate rules applicable to surrogate committee .. 122§ 4726. Review of emergency care ....................... 122

CHAPTER 5. DUTIES OF HEALTH CARE PROVIDERS ........... 123§ 4730. Supervising health care provider’s duty to communicate ... 123§ 4731. Supervising health care provider’s duty to record

relevant information ......................... 123§ 4732. Primary physician’s duty to record relevant information ... 124§ 4733. Duty of health care provider or institution to comply

with health care instructions and decisions .......... 125§ 4734. Right to decline for reasons of conscience or institutional

policy .................................. 126§ 4735. Right to decline to provide ineffective care ............ 126§ 4736. Duty of declining health care provider or institution ...... 127

CHAPTER 6. IMMUNITIES AND LIABILITIES ................. 128§ 4740. Immunities of health care provider and institution........ 128§ 4741. Immunities of agent and surrogate .................. 130§ 4742. Statutory damages ............................ 130§ 4743. Criminal penalties ............................ 131

PART 3. JUDICIAL PROCEEDINGS ....................... 132

CHAPTER 1. GENERAL PROVISIONS ...................... 132§ 4750. Judicial intervention disfavored.................... 132§ 4751. Cumulative remedies .......................... 133§ 4752. Effect of provision in advance directive attempting to

limit right to petition......................... 133§ 4753. Limitations on right to petition .................... 133§ 4754. Jury trial................................... 135§ 4755. Application of general procedural rules .............. 135

CHAPTER 2. JURISDICTION AND VENUE ................... 135§ 4760. Jurisdiction and authority of court or judge ............ 135§ 4761. Basis of jurisdiction ........................... 136§ 4762. Jurisdiction over agent or surrogate ................. 136§ 4763. Venue .................................... 137

CHAPTER 3. PETITIONS, ORDERS, APPEALS................. 137§ 4765. Petitioners.................................. 137§ 4766. Purposes of petition ........................... 138§ 4767. Commencement of proceeding .................... 140§ 4768. Dismissal of petition ........................... 140§ 4769. Notice of hearing ............................. 140


§ 4770. Temporary health care order...................... 141§ 4771. Award of attorney’s fees ........................ 142

PART 4. REQUEST TO FORGO RESUSCITATIVE MEASURES .... 142§ 4780. Request to forgo resuscitative measures .............. 142§ 4781. Health care provider ........................... 143§ 4782. Immunity for honoring request to forgo resuscitative

measures ................................ 143§ 4783. Forms for requests to forgo resuscitative measures ....... 144§ 4784. Presumption of validity ......................... 145§ 4785. Application of part ............................ 145§ 4786. Relation to other law........................... 145

PART 5. ADVANCE HEALTH CARE DIRECTIVE REGISTRY ..... 145§ 4800. Registry system established by Secretary of State ........ 145§ 4801. Identity and fees.............................. 146§ 4802. Notice .................................... 147§ 4803. Effect of failure to register ....................... 147§ 4804. Effect of registration on revocation and validity ......... 147§ 4805. Effect on health care provider ..................... 148

1999] 61


Division 4.7 (added). Health care decisions

SEC. ____. Division 4.7 (commencing with Section 4600)is added to the Probate Code, to read:

DIVISION 4.7. HEALTH CARE DECISIONS

PAR T 1 . DE FINIT IONS AND GE NE R AL

CHAPTER 1. SHORT TITLE AND DEFINITIONS

§ 4600. Short title

4600. This division may be cited as the Health CareDecisions Law.

Comment. Section 4600 is new and provides a convenient means ofreferring to this division. The Health Care Decisions Law is essentiallyself-contained, but other agency statutes may be applied as provided inSection 4688. See also Sections 20 et seq. (general definitions applicablein Probate Code depending on context), 4755 (application of generalprocedural rules). For the scope of this division, see Section 4651.

Many provisions in Parts 1, 2, and 3 are the same as or drawn from theUniform Health-Care Decisions Act (1993). Several general provisionsincluded in the Uniform Health-Care Decisions Act (1993) aregeneralized elsewhere in this code. See Sections 2(b) (construction ofprovisions drawn from uniform acts) (cf. UHCDA § 15), 11 (severability)(cf. UHCDA § 17). In Comments to sections in this title, a reference tothe “Uniform Health-Care Decisions Act (1993)” or the “uniform act” (incontext) means the official text of the uniform act approved by theNational Conference of Commissioners on Uniform State Laws.

§ 4603. Application of definitions

4603. Unless the provision or context otherwise requires,the definitions in this chapter govern the construction of thisdivision.


Comment. Section 4603 serves the same purpose as former Section4600 and is comparable to Section 4010 (Power of Attorney Law).

Some definitions included in the Uniform Health-Care Decisions Act(1993) are generalized elsewhere in this code. See Sections 56 (“person”defined) (cf. uniform act Section 1(10)), 74 (“state” defined) (cf. uniformact Section 1(15)).

§ 4605. Advance health care directive, advance directive

4605. “Advance health care directive” or “advancedirective” means either an individual health care instructionor a power of attorney for health care.

Comment. Section 4605 is new. The first sentence is the same asSection 1(1) of the Uniform Health-Care Decisions Act (1993), exceptthat the term “advance directive” is defined for convenience. “Advancedirective” is commonly used in practice as a shorthand. Statutorylanguage also may use the shorter term. See, e.g., Section 4698. Adeclaration or directive under the repealed Natural Death Act (formerHealth & Safety Code § 7185 et seq.) is a type of advance directive. SeeSection 4623 Comment.

See also Sections 4623 (“individual health care instruction” defined),4629 (“power of attorney for health care” defined).

Background from Uniform Act. The term “advance health-caredirective” appears in the federal Patient Self-Determination Act enactedas Sections 4206 and 4751 of the Omnibus Budget Reconciliation Act of1990 and has gained widespread usage among health-care professionals.[Adapted from Unif. Health-Care Decisions Act § 1(1) comment (1993).]

§ 4607. Agent

4607. (a) “Agent” means an individual designated in apower of attorney for health care to make a health caredecision for the principal, regardless of whether the person isknown as an agent or attorney-in-fact, or by some other term.

(b) “Agent” includes a successor or alternate agent.Comment. Section 4607 is consistent with the definition of attorney-

in-fact in the Power of Attorney Law. See Section 4014. The first part ofsubdivision (a) is the same as Section 1(2) of the Uniform Health-CareDecisions Act (1993). For limitations on who may act as a health careagent, see Section 4659.

See also Sections 4629 (“power of attorney for health care” defined),4633 (“principal” defined).


Background from Uniform Act. The definition of “agent” is notlimited to a single individual. The Act permits the appointment of co-agents and alternate agents. [Adapted from Unif. Health-Care DecisionsAct § 1(2) comment (1993).]

§ 4609. Capacity

4609. “Capacity” means a patient’s ability to understand thenature and consequences of proposed health care, includingits significant benefits, risks, and alternatives, and to makeand communicate a health care decision.

Comment. Section 4609 is a new provision drawn from former Healthand Safety Code Section 1418.8(b) and Section 1(3) of the UniformHealth-Care Decisions Act (1993).

For provisions in this division relating to capacity, see Sections 4651(authority of person having capacity not affected), 4657 (presumption ofcapacity), 4658 (determination of capacity and other medical conditions),4682 (when agent’s authority effective), 4670 (authority to giveindividual health care instruction), 4671 (authority to execute power ofattorney for health care), 4683 (scope of agent’s authority), 4695(revocation of power of attorney for health care), 4710 (authority ofsurrogate to make health care decisions), 4720 (health care decisions forpatient without surrogates), 4732 (duty of primary physician to recordrelevant information), 4733 (obligations of health care provider), 4766(petition as to durable power of attorney for health care).

See also Sections 4615 (“health care” defined), 4617 (“health caredecision” defined).

§ 4611. Community care facility

4611. “Community care facility” means a “community carefacility” as defined in Section 1502 of the Health and SafetyCode.

Comment. Section 4611 continues former Section 4603 withoutsubstantive change.

For provisions in this division using this term, see Sections 4659(limitations on who may act as agent or surrogate), 4673 (witnessingrequirements in skilled nursing facility).


§ 4613. Conservator

4613. “Conservator” means a court-appointed conservatorhaving authority to make a health care decision for a patient.

Comment. Section 4613 is a new provision and serves the samepurpose as Section 1(4) of the Uniform Health-Care Decisions Act(1993) (definition of “guardian”). Terminology in other states may vary,but the law applies the same rules regardless of terminology.

For provisions in this division concerning conservators, see Sections4617 (“health care decision” defined), 4631 (“primary physician”defined), 4643 (“surrogate” defined), 4659 (limitations on who may actas agent or surrogate), 4672 (nomination of conservator in writtenadvance health care directive), 4696 (duty to communicate revocation),4710 (authority of surrogate to make health care decisions), 4732 (dutyof primary physician to record relevant information), 4753 (limitationson right to petition), 4765 (petitioners), 4770 (temporary health careorder).

See also Section 4617 (“health care decision” defined), 4625 (“patient”defined).

§ 4615. Health care

4615. “Health care” means any care, treatment, service, orprocedure to maintain, diagnose, or otherwise affect apatient’s physical or mental condition.

Comment. Section 4615 continues the first part of former Section4609 without substantive change and is the same in substance as Section1(5) of the Uniform Health-Care Decisions Act (1993).

See also Section 4625 (“patient” defined).Background from Uniform Act. The definition of “health care” is to

be given the broadest possible construction. It includes the types of carereferred to in the definition of “health-care decision” [Prob. Code §4617], and to care, including custodial care, provided at a “health-careinstitution” [Prob. Code § 4619]. It also includes non-medical remedialtreatment. [Adapted from Unif. Health-Care Decisions Act § 1(5)comment (1993).]

§ 4617. Health care decision

4617. “Health care decision” means a decision made by apatient or the patient’s agent, conservator, or surrogate,regarding the patient’s health care, including the following:


(a) Selection and discharge of health care providers andinstitutions.

(b) Approval or disapproval of diagnostic tests, surgicalprocedures, and programs of medication.

(c) Directions to provide, withhold, or withdraw artificialnutrition and hydration and all other forms of health care,including cardiopulmonary resuscitation.

Comment. Section 4617 supersedes former Section 4612 and is thesame in substance as Section 1(6) of the Uniform Health-Care DecisionsAct (1993), with the substitution of the reference to cardiopulmonaryresuscitation in subdivision (c) for the uniform act reference to orders notto resuscitate. Adoption of the uniform act formulation is not intended tolimit the scope of health care decisions applicable under former law.Thus, like former law, this section encompasses consent, refusal ofconsent, or withdrawal of consent to health care, or a decision to begin,continue, increase, limit, discontinue, or not to begin any health care.Depending on the circumstances, a health care decision may range from adecision concerning one specific treatment through an extended course oftreatment, as determined by applicable standards of medical practice.

An effective health care decision must be made with informed consent.See, e.g., Cobbs v. Grant, 8 Cal. 3d 229, 242, 502 P.2d 1, 104 Cal. Rptr.505 (1972); Barber v. Superior Court, 147 Cal. App. 3d 1006, 1015, 195Cal. Rptr. 484 (1983). While this division does not use the phrase“informed consent,” it is assumed that the statute will be read in light ofthis well-established doctrine.

See also Sections 4607 (“agent” defined), 4613 (“conservator”defined), 4615 (“health care” defined), 4625 (“patient” defined), 4643(“surrogate” defined).

§ 4619. Health care institution

4619. “Health care institution” means an institution, facility,or agency licensed, certified, or otherwise authorized orpermitted by law to provide health care in the ordinary courseof business.

Comment. Section 4619 is a new provision and is the same as Section1(7) of the Uniform Health-Care Decisions Act (1993).

For provisions in this division using this term, see Sections 4654(compliance with generally accepted health care standards), 4659(limitations on who may act as agent or surrogate) , 4675 (restriction onrequiring or prohibiting advance directive), 4696 (duty to communicate


revocation), 4701 (optional form of advance health care directive), 4711(patient’s designation of surrogate), 4722 (composition of surrogatecommittee), 4733 (obligations of health care institution), 4734 (right todecline for reasons of conscience or institutional policy), 4735 (healthcare institution’s right to decline ineffective care), 4736 (obligations ofdeclining health care institution), 4740 (immunities of health careprovider or institution), 4742 (statutory damages), 4765 (petitioners),4785 (application of request to forgo resuscitative measures).

See also Section 4615 (“health care” defined).Background from Uniform Act. The term “health-care institution”

includes a hospital, nursing home, residential-care facility, home healthagency, or hospice. [Adapted from Unif. Health-Care Decisions Act §1(7) comment (1993).]

§ 4621. Health care provider

4621. “Health care provider” means an individual licensed,certified, or otherwise authorized or permitted by the law ofthis state to provide health care in the ordinary course ofbusiness or practice of a profession.

Comment. Section 4621 continues former Section 4615 withoutsubstantive change and is the same as Section 1(8) of the UniformHealth-Care Decisions Act (1993). This section also continues formerHealth and Safety Code Section 7186(c) (Natural Death Act) withoutsubstantive change.

For provisions in this division using this term, see Sections 4617(“health care decision” defined), 4641 (“supervising health careprovider” defined), 4654 (compliance with generally accepted health carestandards), 4659 (limitations on who may act as agent or surrogate), 4673(witnessing requirements in skilled nursing facility), 4674 (validity ofwritten advance directive executed in another jurisdiction), 4675(restriction on requiring or prohibiting advance directive), 4685 (agent’spriority), 4696 (duty to communicate revocation), 4701 (optional form ofadvance health care directive), 4712 (selection of statutory surrogate),4733 (obligations of health care provider), 4734 (health care provider’sright to decline for reasons of conscience), 4735 (health care provider’sright to decline ineffective care), 4736 (obligations of declining healthcare provider), 4740 (immunities of health care provider), 4742 (statutorydamages).

See also Section 4615 (“health care” defined).


§ 4623. Individual health care instruction, individual instruction

4623. “Individual health care instruction” or “individualinstruction” means a patient’s written or oral directionconcerning a health care decision for the patient.

Comment. Section 4623 is a new provision and is the same insubstance as Section 1(9) of the Uniform Health-Care Decisions Act(1993). The term “individual health care instruction” is included toprovide more clarity. A declaration or directive under the repealedNatural Death Act (former Health & Safety Code § 7185 et seq.) is anindividual health care instruction.

For provisions in this division using this term, see Sections 4605(“advance health care directive” defined), 4625 (“patient” defined), 4658(determination of capacity and other medical conditions), 4670(individual health care instruction recognized), 4671 (power of attorneyfor health care may include individual instruction), 4684 (standardgoverning agent’s health care decisions), 4714 (standard governingsurrogate’s health care decisions), 4720 (application of chapter governinghealth care decisions for patients without surrogates), 4732 (duty ofprimary physician to record relevant information), 4733 (obligations ofhealth care provider or institution), 4734 (health care provider’s orinstitution’s right to decline), 4735 (right to decline to provide ineffectivecare), 4736 (obligations of declining health care provider or institution).

See also Section 4617 (“health care decision” defined), 4625 (“patient”defined).

Background from Uniform Act. The term “individual instruction”includes any type of written or oral direction concerning health-caretreatment. The direction may range from a written document which isintended to be effective at a future time if certain specified conditionsarise and for which a form is provided in Section 4 [Prob. Code § 4701],to the written consent required before surgery is performed, to oraldirections concerning care recorded in the health-care record. Theinstruction may relate to a particular health-care decision or to healthcare in general. [Adapted from Unif. Health-Care Decisions Act § 1(9)comment (1993).]

§ 4625. Patient

4625. “Patient” means an adult whose health care is underconsideration, and includes a principal under a power ofattorney for health care and an adult who has given anindividual health care instruction or designated a surrogate.


Comment. Section 4625 is a new provision added for draftingconvenience. “Adult” includes an emancipated minor. See Fam. Code §§7002 (emancipation), 7050 (emancipated minor considered as adult forconsent to medical, dental, or psychiatric care). For provisions governingsurrogates, see Section 4710 et seq.

See also Sections 4615 (“health care” defined), 4623 (“individualhealth care instruction” defined), 4629 (“power of attorney for healthcare” defined), 4633 (“principal” defined), 4643 (“surrogate” defined).Compare Section 3200 (“patient” defined for purposes of court-authorized medical treatment procedure).

§ 4627. Physician

4627. “Physician” means a physician and surgeon licensedby the Medical Board of California or the OsteopathicMedical Board of California.

Comment. Section 4627 continues and generalizes former Health andSafety Code Section 7186(g) (Natural Death Act) and is the same insubstance as Section 1(11) of the Uniform Health-Care Decisions Act(1993).

§ 4629. Power of attorney for health care

4629. “Power of attorney for health care” means a writteninstrument designating an agent to make health care decisionsfor the principal.

Comment. Section 4629 supersedes former Section 4606 (defining“durable power of attorney for health care”) and is the same in substanceas Section 1(12) of the Uniform Health-Care Decisions Act (1993). Thewriting requirement continues part of Section 4022 (defining “power ofattorney” generally) as it applied to powers of attorney for health careunder former law, and is consistent with part of the second sentence ofSection 2(b) of the Uniform Health-Care Decisions Act (1993).

See also Sections 4607 (“agent” defined), 4617 (“health care decision”defined).

§ 4631. Primary physician

4631. “Primary physician” means a physician designated bya patient or the patient’s agent, conservator, or surrogate, tohave primary responsibility for the patient’s health care or, inthe absence of a designation or if the designated physician is


not reasonably available or declines to act as primaryphysician, a physician who undertakes the responsibility.

Comment. Section 4631 supersedes former Health and Safety CodeSection 7186(a) (“attending physician” defined) and is the same insubstance as Section 1(13) of the Uniform Health-Care Decisions Act(1993), with the addition of the reference to the ability to decline to act asprimary physician. To be a “primary physician” under this division, thesubstantive rules in this section must be complied with. The institutionaldesignation of a person is not relevant. Hence, a “primary carephysician” or a “hospitalist” may or may not be a “primary physician,”depending on the circumstances.

For provisions in this division using this term, see Sections 4641(“supervising health care provider” defined), 4658 (determination ofcapacity and other medical conditions), 4701 (optional form of advancehealth care directive), 4710 (authority of surrogate to make health caredecisions), 4712 (selection of statutory surrogate), 4716 (reassessment ofsurrogate selection), 4720 (application of rules on patients withoutsurrogates), 4721 (referral to interdisciplinary team), 4722 (compositionof surrogate committee), 4723 (standards of review by surrogatecommittee), 4732 (duty of primary physician to record relevantinformation).

See also Sections 4607 (agent” defined), 4613 (“conservator” defined),4615 (“health care” defined), 4627 (“physician” defined), 4635(“reasonably available” defined), 4643 (“surrogate” defined).

Background from Uniform Act. The Act employs the term “primaryphysician” instead of “attending physician.” The term “attendingphysician” could be understood to refer to any physician providingtreatment to the individual, and not to the physician whom the individual,or agent, guardian, or surrogate, has designated or, in the absence of adesignation, the physician who has undertaken primary responsibility forthe individual’s health care. [Adapted from Unif. Health-Care DecisionsAct § 1(13) comment (1993).]

§ 4633. Principal

4633. “Principal” means an adult who executes a power ofattorney for health care.

Comment. Section 4633 is the same in substance as Section 4026 inthe Power of Attorney Law. “Adult” includes an emancipated minor. SeeFam. Code §§ 7002 (emancipation), 7050 (emancipated minorconsidered as adult for consent to medical, dental, or psychiatric care).

See also Section 4629 “(power of attorney for health care” defined).


§ 4635. Reasonably available

4635. “Reasonably available” means readily able to becontacted without undue effort and willing and able to act in atimely manner considering the urgency of the patient’s healthcare needs.

Comment. Section 4635 is the same as Section 1(14) of the UniformHealth-Care Decisions Act (1993).

For provisions in this division using this term, see Sections 4631(“primary physician” defined), 4641 (“supervising health care provider”defined), 4685 (agent’s priority), 4701 (optional form of advance healthcare directive), 4710 (authority of surrogate to make health caredecisions), 4712 (selection of statutory surrogate), 4716 (reassessment ofsurrogate selection), 4720 (application of rules on patients withoutsurrogates).

See also Section 4615 (“health care” defined), 4625 (“patient”defined).

Background from Uniform Act. The term “reasonably available” isused in the Act to accommodate the reality that individuals willsometimes not be timely available. The term is incorporated into thedefinition of “supervising health-care provider” [Prob. Code § 4641]. Itappears in the optional statutory form (Section 4) [Prob. Code § 4701] toindicate when an alternate agent may act. In Section 5 [Prob. Code §4712] it is used to determine when a surrogate will be authorized to makehealth-care decisions for an individual, and if so, which class ofindividuals has authority to act. [Adapted from Unif. Health-CareDecisions Act § 1(14) comment (1993).]

§ 4637. Residential care facility for the elderly

4637. “Residential care facility for the elderly” means a“residential care facility for the elderly” as defined in Section1569.2 of the Health and Safety Code.

Comment. Section 4637 continues former Section 4618 withoutsubstantive change.

For provisions in this division using this term, see Sections 4659(limitations on who may act as agent or surrogate), 4673 (witnessingrequirements in skilled nursing facility), 4701 (optional form of advancehealth care directive).


§ 4639. Skilled nursing facility

4639. “Skilled nursing facility” means a “skilled nursingfacility” as defined in Section 1250 of the Health and SafetyCode.

Comment. Section 4639 is a new provision that incorporates therelevant definition from the Health and Safety Code.

For provisions in this division using this term, see Sections 4673(witnessing requirements in skilled nursing facility), 4701 (optional formof advance health care directive).

§ 4641. Supervising health care provider

4641. “Supervising health care provider” means the primaryphysician or, if there is no primary physician or the primaryphysician is not reasonably available, the health care providerwho has undertaken primary responsibility for a patient’shealth care.

Comment. Section 4641 is a new provision and is the same insubstance as Section 1(16) of the Uniform Health-Care Decisions Act(1993).

For provisions in this division using this term, see Sections 4659(limitations on who may act as agent or surrogate), 4695 (revocation ofpower of attorney for health care), 4696 (duty to communicaterevocation), 4701 (optional form of advance health care directive), 4711(patient’s designation of surrogate), 4715 (disqualification of surrogate),4730 (duty of health care provider to communicate), 4731 (duty ofsupervising health care provider to record relevant information), 4765(petitioners).

See also Sections 4607 (“agent” defined), 4615 (“health care” defined),4621 (“health care provider” defined), 4625 (“patient” defined), 4631(“primary physician” defined), 4635 (“reasonably available” defined).

Background from Uniform Act. The definition of “supervisinghealth-care provider” accommodates the circumstance that frequentlyarises where care or supervision by a physician may not be readilyavailable. The individual’s primary physician is to assume the role,however, if reasonably available. [Adapted from Unif. Health-CareDecisions Act § 1(16) comment (1993).]


§ 4643. Surrogate

4643. “Surrogate” means an adult, other than a patient’sagent or conservator, authorized under this division to make ahealth care decision for the patient.

Comment. Section 4643 is a new provision and is the same insubstance as Section 1(17) of the Uniform Health-Care Decisions Act(1993), except that this section refers to “conservator” instead of“guardian” and to “adult” instead of “individual.” “Adult” includes anemancipated minor. See Fam. Code § 7002 (emancipation). Forprovisions governing surrogates, see Section 4710 et seq.

For provisions in this division using this term, see Sections 4617(health care decision), 4625 (patient), 4631 (primary physician), 4653(mercy killing, assisted suicide, euthanasia not approved), 4657(presumption of capacity), 4658 (determination of capacity and othermedical conditions), 4659 (limitations on who may act as agent orsurrogate), 4660 (use of copies), 4696 (duty to communicate revocation),4710-4716 (health care surrogates), 4720 (application of rules on patientswithout surrogates), 4725 (general surrogate rules applicable to surrogatecommittee), 4731 (duty of supervising health care provider to recordrelevant information), 4732 (duty of primary physician to record relevantinformation), 4741 (immunities of agent and surrogate), 4750 (judicialintervention disfavored), 4762 (jurisdiction over agent or surrogate),4763 (venue), 4765 (petitioners), 4766 (purposes of petition), 4769(notice of hearing), 4771 (award of attorney’s fees). See also 4780(request to forgo resuscitative measures), 4783 (forms for requests toforgo resuscitative measures).

See also Sections 4607 (“agent” defined), 4617 (“health care decision”defined), 4625 (“patient” defined).

Background from Uniform Act. The definition of “surrogate” refersto the individual having present authority under Section 5 [Prob. Code §4710 et seq.] to make a health-care decision for a patient. It does notinclude an individual who might have such authority under a given set ofcircumstances which have not occurred. [Adapted from Unif. Health-Care Decisions Act § 1(17) comment (1993).]


CHAPTER 2. GENERAL PROVISIONS

§ 4650. Legislative findings

4650. The Legislature finds the following:(a) In recognition of the dignity and privacy a person has a

right to expect, the law recognizes that an adult has thefundamental right to control the decisions relating to his orher own health care, including the decision to have life-sustaining treatment withheld or withdrawn.

(b) Modern medical technology has made possible theartificial prolongation of human life beyond natural limits. Inthe interest of protecting individual autonomy, thisprolongation of the process of dying for a person for whomcontinued health care does not improve the prognosis forrecovery may violate patient dignity and cause unnecessarypain and suffering, while providing nothing medicallynecessary or beneficial to the person.

(c) In the absence of controversy, a court is normally not theproper forum in which to make health care decisions,including decisions regarding life-sustaining treatment.

Comment. Section 4650 preserves and continues the substance of thelegislative findings set out in former Health and Safety Code Section7185.5 (Natural Death Act). These findings, in an earlier form, have beenrelied upon by the courts. Conservatorship of Drabick, 200 Cal. App. 3d185, 206, 245 Cal. Rptr. 840, 853 (1988); Bouvia v. Superior Court, 179Cal. App. 3d 1127, 1137, 225 Cal. Rptr. 297, 302 (1986); Bartling v.Superior Court, 163 Cal. App. 3d 186, 194-95, 209 Cal. Rptr. 220, 224-25 (1984); Barber v. Superior Court, 147 Cal. App. 3d 1006, 1015-16,195 Cal. Rptr. 484, 489-90 (1983). The earlier legislative findings werelimited to persons with a terminal condition or permanent unconsciouscondition. This restriction is not continued here in recognition of thebroader scope of this division and the development of case law sinceenactment of the original Natural Death Act in 1976. References to“medical care” in former law have been changed to “health care” forconsistency with the language of this division. See Section 4615 (“healthcare” defined). This is not intended as a substantive change. “Adult”includes an emancipated minor. See Fam. Code §§ 7002 (emancipation),


7050 (emancipated minor considered as adult for consent to medical,dental, or psychiatric care).

Parts of former Health and Safety Code Section 7185.5 that are moreappropriately stated as substantive provisions are not continued here. Seealso Section 4750 (judicial intervention disfavored).

§ 4651. Scope of division

4651. (a) Except as otherwise provided, this division appliesto health care decisions for adults who lack capacity to makehealth care decisions for themselves.

(b) This division does not affect any of the following:(1) The right of an individual to make health care decisions

while having the capacity to do so.(2) The law governing health care in an emergency.(3) The law governing health care for unemancipated

minors.Comment. Subdivision (a) of Section 4651 is a new provision.Subdivision (b)(1) is the same in substance as Section 11(a) of the

Uniform Health-Care Decisions Act (1993) and replaces former Healthand Safety Code Section 7189.5(a) (Natural Death Act).

Subdivision (b)(2) continues the substance of former Section 4652(b).Subdivision (b)(3) is new. This division applies to emancipated minors

to the same extent as adults. See Fam. Code §§ 7002 (emancipation),7050 (emancipated minor considered as adult for consent to medical,dental, or psychiatric care).

See also Sections 4605 (“advance health care directive” defined), 4615(“health care” defined), 4617 (“health care decision” defined), 4687(other authority of person named as agent not affected).

§ 4652. Excluded acts

4652. This division does not authorize consent to any of thefollowing on behalf of a patient:

(a) Commitment to or placement in a mental healthtreatment facility.

(b) Convulsive treatment (as defined in Section 5325 of theWelfare and Institutions Code).

(c) Psychosurgery (as defined in Section 5325 of theWelfare and Institutions Code).


(d) Sterilization.(e) Abortion.Comment. Section 4652 continues former Section 4722 without

substantive change and revises language for consistency with the broaderscope of this division. A power of attorney may not vary the limitationsof this section. See also Section 4653 (mercy killing, assisted suicide,euthanasia not approved).

§ 4653. Mercy killing, assisted suicide, euthanasia not approved

4653. Nothing in this division shall be construed tocondone, authorize, or approve mercy killing, assistedsuicide, or euthanasia. This division is not intended to permitany affirmative or deliberate act or omission to end life otherthan withholding or withdrawing health care pursuant to anadvance health care directive, by a surrogate, or as otherwiseprovided, so as to permit the natural process of dying.

Comment. Section 4653 continues the first sentence of former Section4723 without substantive change, and is consistent with Section 13(c) ofthe Uniform Health-Care Decisions Act (1993). This section alsocontinues the substance of former Health and Safety Code Section7191.5(g) (Natural Death Act). Language has been revised to conform tothe broader scope of this division. This section provides a rule governingthe interpretation of this division. It is not intended as a general statementbeyond the scope of this division nor is it intended to affect any otherauthority that may exist.

See Sections 4670 et seq. (advance health care directives), 4710 et seq.(health care surrogates), 4725 (surrogate rules applicable to surrogatecommittee). See also Sections 4605 (“advance health care directive”defined), 4615 (“health care” defined), 4643 (“surrogate” defined).

§ 4654. Compliance with generally accepted health care standards

4654. This division does not authorize or require a healthcare provider or health care institution to provide health carecontrary to generally accepted health care standardsapplicable to the health care provider or health careinstitution.

Comment. Section 4654 is the same as Section 13(d) of the UniformHealth-Care Decisions Act (1993). For a special application of this


general rule, see Section 4735 (right to decline to provide ineffectivecare). This section continues the substance of former Health & SafetyCode Section 7191.5(f) (Natural Death Act) and subsumes the specificduty under former Health and Safety Code Section 7189.5(b) concerningproviding comfort care and alleviation of pain.

See also Sections 4615 (“health care” defined), 4619 (“health careinstitution” defined), 4621 (“health care provider” defined).

§ 4655. Impermissible constructions

4655. (a) This division does not create a presumptionconcerning the intention of a patient who has not made orwho has revoked an advance health care directive.

(b) In making health care decisions under this division, apatient’s attempted suicide shall not be construed to indicate adesire of the patient that health care be restricted or inhibited.

Comment. Subdivision (a) of Section 4655 is the same in substance asSection 13(a) of the Uniform Health-Care Decisions Act (1993).

Subdivision (b) continues the second sentence of former Section 4723without substantive change and with wording changes to reflect thebroader scope of this division.

See also Sections 4605 (“advance health care directive” defined), 4615(“health care” defined), 4617 (“health care decision” defined), 4625(“patient” defined).

§ 4656. Effect on death benefits

4656. Death resulting from withholding or withdrawinghealth care in accordance with this division does not for anypurpose constitute a suicide or homicide or legally impair orinvalidate a policy of insurance or an annuity providing adeath benefit, notwithstanding any term of the policy orannuity to the contrary.

Comment. Section 4656 continues and generalizes former Health andSafety Code Section 7191.5(a)-(b) (Natural Death Act), and is the samein substance as Section 13(b) of the Uniform Health-Care Decisions Act(1993).

See also Section 4615 (“health care” defined).


§ 4657. Presumption of capacity

4657. A patient is presumed to have the capacity to make ahealth care decision, to give or revoke an advance health caredirective, and to designate or disqualify a surrogate. Thispresumption is a presumption affecting the burden of proof.

Comment. Section 4657 is the same in substance as Section 11(b) ofthe Uniform Health-Care Decisions Act (1993). The presumption ofcapacity with regard to revocation continues the substance of formerSection 4727(c), and is consistent with former Health and Safety CodeSection 7189.5(a) (Natural Death Act). See also Section 4766(a) (petitionto review capacity determinations). The burden of proof is on the personwho seeks to establish that the principal did not have capacity. Thissection is also consistent with the rule applicable under Section 810 (dueprocess in capacity determinations).

See also Sections 4605 (“advance health care directive” defined), 4609(“capacity” defined), 4617 (“health care decision” defined), 4625(“patient” defined), 4643 (“surrogate” defined).

Background from Uniform Act. Section 11 reinforces the principleof patient autonomy by providing a rebuttable presumption that anindividual has capacity for all decisions relating to health care referred toin the Act. [Adapted from Unif. Health-Care Decisions Act § 11comment (1993).]

§ 4658. Determination of capacity and other medical conditions

4658. Unless otherwise specified in a written advancehealth care directive, for the purposes of this division, adetermination that a patient lacks or has recovered capacity,or that another condition exists that affects an individualhealth care instruction or the authority of an agent orsurrogate, shall be made by the primary physician.

Comment. Section 4658 is drawn from Section 2(d) (advancedirectives) and part of Section 5(a) (surrogates) of the Uniform Health-Care Decisions Act (1993). This section makes clear that capacitydeterminations need not be made by the courts. For provisions governingjudicial determinations of capacity, see Sections 810-813 (Due Process inCapacity Determinations Act). See also Section 4766 (petitionsconcerning advance directives). For the primary physician’s duty torecord capacity determinations, see Section 4732. See also Section4766(a) (petition to review capacity determinations).


See also Sections 4605 (“advance health care directive” defined), 4607(“agent” defined), 4609 (“capacity” defined), 4623 (“individual healthcare instruction” defined), 4625 (“patient” defined), 4631 (“primaryphysician” defined), 4643 (“surrogate” defined).

Background from Uniform Act. Section 2(d) provides that unlessotherwise specified in a written advance health-care directive, adetermination that a principal has lost or recovered capacity to makehealth-care decisions must be made by the primary physician. Forexample, a principal might specify that the determination of capacity is tobe made by the agent in consultation with the primary physician. Or aprincipal, such as a member of the Christian Science faith who relies on areligious method of healing and who has no primary physician, mightspecify that capacity be determined by other means. In the event thatmultiple decision makers are specified and they cannot agree, it may benecessary to seek court instruction as authorized by Section 14 [see Prob.Code § 4766].

Section 2(d) also provides that unless otherwise specified in a writtenadvance health-care directive, the existence of other conditions whichaffect an individual instruction or the authority of an agent must bedetermined by the primary physician. For example, an individual mightspecify that an agent may withdraw or withhold treatment that keeps theindividual alive only if the individual has an incurable and irreversiblecondition that will result in the individual’s death within a relativelyshort time. In that event, unless otherwise specified in the advancehealth-care directive, the determination that the individual has thatcondition must be made by the primary physician.

[Adapted from Unif. Health-Care Decisions Act § 2(d) comment(1993).]

§ 4659. Limitations on who may act as agent or surrogate

4659. (a) Except as provided in subdivision (b), none of thefollowing persons may make health care decisions as an agentunder a power of attorney for health care or a surrogate underthis division:

(1) The supervising health care provider or an employee ofthe health care institution where the patient is receiving care.

(2) An operator or employee of a community care facility orresidential care facility where the patient is receiving care.

(b) The prohibition in subdivision (a) does not apply to thefollowing persons:


(1) An employee who is related to the patient by blood,marriage, or adoption.

(2) An employee who is employed by the same health careinstitution, community care facility, or residential care facilityfor the elderly as the patient.

(c) A conservator under the Lanterman-Petris-Short Act(Part 1 (commencing with Section 5000) of Division 5 of theWelfare and Institutions Code) may not be designated as anagent or surrogate to make health care decisions by theconservatee, unless all of the following are satisfied:

(1) The advance health care directive is otherwise valid.(2) The conservatee is represented by legal counsel.(3) The lawyer representing the conservatee signs a

certificate stating in substance:

“I am a lawyer authorized to practice law in the statewhere this advance health care directive was executed,and the principal or patient was my client at the time thisadvance directive was executed. I have advised myclient concerning his or her rights in connection with thisadvance directive and the applicable law and theconsequences of signing or not signing this advancedirective, and my client, after being so advised, hasexecuted this advance directive.”

(d) This section does not apply to participation in ordecisionmaking by a surrogate committee pursuant to Chapter4 (commencing with Section 4720) of Part 2.

Comment. Subdivisions (a)-(c) of Section 4659 restate former Section4702 without substantive change, and extend its principles to coversurrogates. The terms “supervising health care provider” and “health careinstitution” have been substituted for “treating health care provider” asappropriate, for consistency with the terms used in this division. SeeSection 4641 (“supervising health care provider” defined).

Subdivisions (a) and (b) serve the same purpose as Section 2(b) (fourthsentence) and Section 5(i) of the Uniform Health-Care Decisions Act(1993). Subdivision (a) does not preclude a person from appointing, forexample, a friend who is a physician as the agent under the person’s


power of attorney for health care, but if the physician becomes theperson’s “supervising health care provider,” the physician is precludedfrom acting as the agent under the power of attorney. See also Section4673 (witnessing requirements in skilled nursing facilities).

Subdivision (b) provides a special exception to subdivision (a). Thiswill, for example, permit a nurse to serve as agent for the nurse’s spousewhen the spouse is being treated at the hospital where the nurse isemployed.

Subdivision (c) prescribes conditions that must be satisfied if aconservator is to be designated as the agent or surrogate for a conservateeunder the Lanterman-Petris-Short Act. This subdivision has noapplication where a person other than the conservator is so designated.

Subdivision (d) makes clear that the rules governing surrogatecommittees under Sections 4720-4725 prevail over this section.

See also Sections 4605 (“advance health care directive” defined), 4607(“agent” defined), 4611 (“community care facility” defined), 4613(“conservator” defined), 4617 (“health care decision” defined), 4619(“health care institution” defined), 4625 (“patient” defined), 4629(“power of attorney for health care” defined), 4637 (“residential carefacility for the elderly” defined), 4641 (“supervising health careprovider” defined), 4643 (“surrogate” defined).

§ 4660. Use of copies

4660. A copy of a written advance health care directive,revocation of an advance directive, or designation ordisqualification of a surrogate has the same effect as theoriginal.

Comment. Section 4660 provides a special rule permitting the use ofcopies under this division. It is the same as Section 12 of the UniformHealth-Care Decisions Act (1993). The rule under this section for powersof attorney for health care differs from the rule under the Power ofAttorney Law. See Section 4307 (certified copy of power of attorney).

See also Sections 4605 (“advance health care directive” defined), 4643(“surrogate” defined).

Background from Uniform Act. The need to rely on an advancehealth-care directive may arise at times when the original is inaccessible.For example, an individual may be receiving care from several health-care providers or may be receiving care at a location distant from thatwhere the original is kept. To facilitate prompt and informed decisionmaking, this section provides that a copy of a valid written advancehealth-care directive, revocation of an advance health-care directive, or


designation or disqualification of a surrogate has the same effect as theoriginal. [Adapted from Unif. Health-Care Decisions Act § 12 comment(1993).]

CHAPTER 3. TRANSITIONAL PROVISIONS

§ 4665. Application to existing advance directives and pendingproceedings

4665. Except as otherwise provided by statute:(a) On and after July 1, 2000, this division applies to all

advance health care directives, including, but not limited to,durable powers of attorney for health care and declarationsunder the Natural Death Act (former Chapter 3.9(commencing with Section 7185) of Part 1 of Division 7 ofthe Health and Safety Code), regardless of whether they weregiven or executed before, on, or after July 1, 2000.

(b) This division applies to all proceedings concerningadvance health care directives commenced on or after July 1,2000.

(c) This division applies to all proceedings concerningwritten advance health care directives commenced before July1, 2000, unless the court determines that application of aparticular provision of this division would substantiallyinterfere with the effective conduct of the proceedings or therights of the parties and other interested persons, in whichcase the particular provision of this division does not applyand prior law applies.

(d) Nothing in this division affects the validity of anadvance health care directive executed before July 1, 2000,that was valid under prior law.

(e) Nothing in this division affects the validity of a durablepower of attorney for health care executed on a printed formthat was valid under prior law, regardless of whetherexecution occurred before, on, or after July 1, 2000.

Comment. Section 4665 serves the same purpose as Section 4054 inthe Power of Attorney Law, but covers all advance health care directives,


including powers of attorney, written or oral individual health careinstructions, and surrogate designations.

Subdivision (a) provides the general rule that this division applies to alladvance health care directives, regardless of when a written advancedirective was executed or an oral individual instruction was made. Asprovided in subdivision (d), however, nothing in this division invalidatesany advance directive that was validly executed under prior law, andsubdivision (e) protects individuals who happen to use an outdatedprinted form.

Subdivision (b) is a specific application of the general rule insubdivision (a). See Section 4750 et seq. (judicial proceedings).Subdivision (c) provides discretion to the court to resolve problemsarising in proceedings commenced before the operative date.

See also Sections 4605 (“advance health care directive” defined), 4629(“power of attorney for health care” defined).

PAR T 2 . UNIFOR M HE AL T H C AR EDE C ISIONS AC T

CHAPTER 1. ADVANCE HEALTH CARE DIRECTIVES

Article 1. General Provisions

§ 4670. Authority to give individual health care instruction

4670. An adult having capacity may give an individualhealth care instruction. The individual instruction may be oralor written. The individual instruction may be limited to takeeffect only if a specified condition arises.

Comment. Section 4670 is drawn from Section 2(a) of the UniformHealth-Care Decisions Act (1993). This section supersedes part of formerHealth and Safety Code Section 7186.5 (Natural Death Act). “Adult”includes an emancipated minor. See Fam. Code §§ 7002 (emancipation),7050 (emancipated minor considered as adult for consent to medical,dental, or psychiatric care).

See also Sections 4615 (“health care” defined), 4623 (“individualhealth care instruction” defined).

Background from Uniform Act. The individual instructionauthorized in Section 2(a) may but need not be limited to take effect inspecified circumstances, such as if the individual is dying. An individual


instruction may be either written or oral. [Adapted from Unif. Health-Care Decisions Act § 2(a) comment (1993).]

§ 4671. Authority to execute power of attorney for health care

4671. (a) An adult having capacity may execute a power ofattorney for health care, as provided in Article 2(commencing with Section 4680). The power of attorney forhealth care may authorize the agent to make health caredecisions and may also include individual health careinstructions.

(b) The principal in a power of attorney for health care maygrant authority to make decisions relating to the personal careof the principal, including, but not limited to, determiningwhere the principal will live, providing meals, hiringhousehold employees, providing transportation, handlingmail, and arranging recreation and entertainment.

Comment. Subdivision (a) of Section 4671 is drawn from the first andthird sentences of Section 2(b) of the Uniform Health-Care Decisions Act(1993). The first sentence supersedes Section 4120 (who may executepower of attorney) to the extent it applied to powers of attorney forhealth care. “Adult” includes an emancipated minor. See Fam. Code §§7002 (emancipation), 7050 (emancipated minor considered as adult forconsent to medical, dental, or psychiatric care).

Subdivision (b), relating to personal care authority, is parallel toSection 4123(c) (personal care authority permissible in non-health carepower of attorney). For powers of attorney generally, see the Power ofAttorney Law, Section 4000 et seq. Personal care powers are notautomatic. Under subdivision (b), the agent does not have personal carepowers except to the extent that they are granted by the principal.

See also Sections 4607 (“agent” defined), 4617 (“health care decision”defined), 4623 (“individual health care instruction” defined), 4629(“power of attorney for health care” defined).

Background from Uniform Act. Section 2(b) authorizes a power ofattorney for health care to include instructions regarding the principal’shealth care. This provision has been included in order to validate thepractice of designating an agent and giving individual instructions in onedocument instead of two. The authority of an agent falls within thediscretion of the principal as expressed in the instrument creating the


power and may extend to any health-care decision the principal couldhave made while having capacity.

Section 2(b) excludes the oral designation of an agent. Section 5(b)[Prob. Code § 4711] authorizes an individual to orally designate asurrogate by personally informing the supervising health-care provider.A power of attorney for health care, however, must be in writing andsigned by the principal, although it need not be witnessed oracknowledged [except in certain circumstances].

[Adapted from Unif. Health-Care Decisions Act § 2(b) comment(1993).]

§ 4672. Nomination of conservator in written advance directive

4672. (a) A written advance health care directive mayinclude the individual’s nomination of a conservator of theperson or estate or both, or a guardian of the person or estateor both, for consideration by the court if protectiveproceedings for the individual’s person or estate are thereaftercommenced.

(b) If the protective proceedings are conservatorshipproceedings in this state, the nomination has the effectprovided in Section 1810 and the court shall give effect to themost recent writing executed in accordance with Section1810, whether or not the writing is a written advance healthcare directive.

Comment. Section 4672 continues Section 4126 without substantivechange, insofar as that section applied to powers of attorney for healthcare, and expands the scope of the rule to apply to other written advancehealth care directives. Subdivision (a) is the same in substance as Section2(g) of the Uniform Health-Care Decisions Act (1993).

See also Sections 4605 (“advance health care directive” defined), 4613(“conservator” defined).

§ 4673. Witnessing required in skilled nursing facility

4673. (a) If an individual is a patient in a skilled nursingfacility when the advance health care directive is executed,the advance directive shall be acknowledged before a notarypublic or signed by at least two witnesses as provided in thissection.


(b) If the advance health care directive is signed bywitnesses, the following requirements shall be satisfied:

(1) The witnesses shall be adults.(2) Each witness shall witness either the signing of the

advance health care directive by the patient or the patient’sacknowledgment of the signature or the advance directive.

(3) None of the following persons may act as a witness:(A) The agent, with regard to a power of attorney for health

care.(B) The patient’s health care provider or an employee of the

patient’s health care provider.(C) The operator or an employee of a community care

facility.(D) The operator or an employee of a residential care

facility for the elderly.(4) Each witness shall make the following declaration in

substance:

“I declare under penalty of perjury under the laws ofCalifornia that the individual who signed oracknowledged this document is personally known to me,or that the identity of the individual was proven to me byconvincing evidence, that the individual signed oracknowledged this advance health care directive in mypresence, that the individual appears to be of sound mindand under no duress, fraud, or undue influence, that I amnot the person appointed as agent by this document, andthat I am not the individual’s health care provider, anemployee of the individual’s health care provider, theoperator of a community care facility, an employee of anoperator of a community care facility, the operator of aresidential care facility for the elderly, nor an employeeof an operator of a residential care facility for theelderly.”


(c) An advance health care directive governed by thissection is not effective unless a patient advocate orombudsman, as may be designated by the Department ofAging for this purpose pursuant to any other applicableprovision of law, signs the advance directive as a witness,either as one of two witnesses or in addition to notarization.The patient advocate or ombudsman shall declare that he orshe is serving as a witness as required by this subdivision. Itis the intent of this subdivision to recognize that some patientsin skilled nursing facilities are insulated from a voluntarydecisionmaking role, by virtue of the custodial nature of theircare, so as to require special assurance that they are capableof willfully and voluntarily executing an advance directive.

(d) For the purposes of the declaration of witnesses,“convincing evidence” means the absence of any information,evidence, or other circumstances that would lead a reasonableperson to believe the individual executing the advance healthcare directive, whether by signing or acknowledging his orher signature, is not the individual he or she claims to be, andany one of the following:

(1) Reasonable reliance on the presentation of any one ofthe following, if the document is current or has been issuedwithin five years:

(A) An identification card or driver’s license issued by theCalifornia Department of Motor Vehicles.

(B) A passport issued by the Department of State of theUnited States.

(2) Reasonable reliance on the presentation of any one ofthe following, if the document is current or has been issuedwithin five years and contains a photograph and descriptionof the person named on it, is signed by the person, bears aserial or other identifying number, and, in the event that thedocument is a passport, has been stamped by the UnitedStates Immigration and Naturalization Service:


(A) A passport issued by a foreign government.(B) A driver’s license issued by a state other than California

or by a Canadian or Mexican public agency authorized toissue drivers’ licenses.

(C) An identification card issued by a state other thanCalifornia.

(D) An identification card issued by any branch of thearmed forces of the United States.

(e) A witness who is a patient advocate or ombudsman mayrely on the representations of the administrators or staff of theskilled nursing facility, or of family members, as convincingevidence of the identity of the patient if the patient advocateor ombudsman believes that the representations provide areasonable basis for determining the identity of the patient.

(f) The provisions of this section applicable to witnesses donot apply to a notary who acknowledges an advance healthcare directive.

Comment. Subdivisions (a)-(c) of Section 4673 continue Sections4121 and 4122 without substantive change, to the extent they applied topowers of attorney for health care, and continues former Section 4701without substantive change, to the extent it applied to powers of attorneygoverned by this section. This section expands the witnessing andnotarization rules under former law to cover all written advancedirectives executed in nursing homes, not just powers of attorney.

Subdivisions (d) and (e) continue the substance of relevant parts offormer Section 4751 (convincing evidence of identity of principal) andapply to all written advance directives covered by this section, not justpowers of attorney for health care as under former law.

Subdivision (f) is a new provision that makes clear that the specialrules and restrictions applicable to witnesses are not applicable tonotaries. Notaries are subject to obligations under other law by virtue ofoffice. See Gov’t Code § 8200 et seq.

See also Sections 4605 (“advance health care directive” defined), 4611(“community care facility” defined), 4621 (“health care provider”defined), 4625 (“patient” defined), 4637 (“residential care facility for theelderly” defined), 4639 (“skilled nursing facility” defined).


§ 4674. Validity of written advance directive executed in anotherjurisdiction

4674. (a) A written advance health care directive or similarinstrument executed in another state or jurisdiction incompliance with the laws of that state or jurisdiction or of thisstate, is valid and enforceable in this state to the same extentas a written advance directive validly executed in this state.

(b) In the absence of knowledge to the contrary, a physicianor other health care provider may presume that a writtenadvance health care directive or similar instrument, whetherexecuted in another state or jurisdiction or in this state, isvalid.

Comment. Subdivision (a) of Section 4674 continues former Section4653 without substantive change, and extends its principles to apply toall written advance health care directives, which include both powers ofattorney for health care and written individual instructions. Thissubdivision also continues and generalizes former Health and SafetyCode Section 7192.5 (Natural Death Act). This subdivision is consistentwith Section 2(h) of the Uniform Health-Care Decisions Act (1993), asapplied to instruments.

Subdivision (b) continues former Section 4752 without substantivechange, and broadens the former rule for consistency with the scope ofthis division. This subdivision also continues and generalizes formerHealth and Safety Code Section 7192 (Natural Death Act).

See also Section 4605 (“advance health care directive” defined”), 4621(“health care provider” defined), 4627 (“physician” defined). For the ruleapplicable under the Power of Attorney Law, see Section 4053.

Background from Uniform Act. Section 2(h) validates advancehealth-care directives which conform to the Act, regardless of when orwhere executed or communicated. This includes an advance health-caredirective which would be valid under the Act but which was made priorto the date of its enactment and failed to comply with the executionrequirements then in effect. It also includes an advance health-caredirective which was made in another jurisdiction but which does notcomply with that jurisdiction’s execution or other requirements.[Adapted from Unif. Health-Care Decisions Act § 2(h) comment (1993).]


§ 4675. Restriction on requiring or prohibiting advance directive

4675. A health care provider, health care service plan,health care institution, disability insurer, self-insuredemployee welfare plan, or nonprofit hospital plan or a similarinsurance plan may not require or prohibit the execution orrevocation of an advance health care directive as a conditionfor providing health care, admission to a facility, orfurnishing insurance.

Comment. Section 4675 continues and generalizes former Section4725, and contains the substance of Section 7(h) of the Uniform Health-Care Decisions Act (1993). The former provision applied only to powersof attorney for health care. This section supersedes former Health andSafety Code Sections 7191(e)-(f) and 7191.5(c) (Natural Death Act).This section is intended to eliminate the possibility that duress might beused by a health care provider, insurer, plan, or other entity to cause thepatient to execute or revoke an advance directive. The reference to a“health care service plan” is drawn from Health and Safety Code Section1345(f) in the Knox-Keene Health Care Service Plan Act of 1975.

See also Sections 4605 (“advance health care directive” defined), 4615(“health care” defined), 4619 (“health care institution” defined), 4621(“health care provider” defined).

Background from Uniform Act. Section 7(h), forbidding a health-care provider or institution to condition provision of health care onexecution, non-execution, or revocation of an advance health-caredirective, tracks the provisions of the federal Patient Self-DeterminationAct. 42 U.S.C. §§ 1395cc(f)(1)(C) (Medicare), 1396a(w)(1)(C)(Medicaid). [Adapted from Unif. Health-Care Decisions Act § 7(h)comment (1993).]

§ 4676. Right to health care information

4676. Unless otherwise specified in an advance health caredirective, a person then authorized to make health caredecisions for a patient has the same rights as the patient torequest, receive, examine, copy, and consent to the disclosureof medical or any other health care information.

Comment. Section 4676 is drawn from Section 8 of the UniformHealth-Care Decisions Act (1993). This section continues former Section4721 without substantive change, but is broader in scope since it coversall persons authorized to make health care decisions for a patient, not just


agents. A power of attorney may limit the right of the agent, for example,by precluding examination of specified medical records or by providingthat the examination of medical records is authorized only if the principallacks the capacity to give informed consent. The right of the agent issubject to any limitations on the right of the patient to reach medicalrecords. See Health & Safety Code §§ 1795.14 (denial of right to inspectmental health records), 1795.20 (providing summary of record ratherthan allowing access to entire record).

See also Sections 4605 (“advance health care directive” defined), 4617(“health care decision” defined), 4625 (“patient” defined).

Background from Uniform Act. An agent, conservator, [guardian,]or surrogate stands in the shoes of the patient when making health-caredecisions. To assure fully informed decisionmaking, this section providesthat a person who is then authorized to make health-care decisions for apatient has the same right of access to health-care information as does thepatient unless otherwise specified in the patient’s advance health-caredirective. [Adapted from Unif. Health-Care Decisions Act § 8 comment(1993).]

Article 2. Powers of Attorney for Health Care

§ 4680. Formalities for executing a power of attorney for health care

4680. A power of attorney for health care is legallysufficient if all of the following requirements are satisfied:

(a) The power of attorney is signed either (1) by theprincipal or (2) in the principal’s name by another adult in theprincipal’s presence and at the principal’s direction.

(b) The power of attorney satisfies applicable witnessingrequirements of Section 4673.

Comment. Section 4680 continues Section 4121, insofar as it appliedto powers of attorney for health care, without substantive change, exceptthat (1) the power of attorney for health care is not required to be dated,(2) “adult” has been substituted for “person” in subdivision (a), and (3)the witnessing requirements in subdivision (b) are restricted to the specialcircumstances provided in Section 4673. “Adult” includes anemancipated minor. See Fam. Code §§ 7002 (emancipation), 7050(emancipated minor considered as adult for consent to medical, dental, orpsychiatric care).

Although the statute does not invalidate a power of attorney for healthcare that is not dated, providing the date of execution is strongly


recommended and a place for entering the date is included in the optionalstatutory form of the advance health care directive. See Section 4701.Omission of the dating requirement is consistent with Section 2(b) of theUniform Health-Care Decisions Act.

A power of attorney must be in writing. See Section 4629 (“power ofattorney for health care” defined). This section provides the generalexecution formalities for a power of attorney under this division. Apower of attorney that complies with this section is legally sufficient as agrant of authority to an agent.

See also Section 4633 (“principal” defined).

§ 4681. Limitations expressed in power of attorney for health care

4681. (a) Except as provided in subdivision (b), theprincipal may limit the application of any provision of thisdivision by an express statement in the power of attorney forhealth care or by providing an inconsistent rule in the powerof attorney.

(b) A power of attorney for health care may not limit eitherthe application of a statute specifically providing that it is notsubject to limitation in the power of attorney or a statuteconcerning any of the following:

(1) Statements required to be included in a power ofattorney.

(2) Operative dates of statutory enactments or amendments.(3) Formalities for execution of a power of attorney for

health care.(4) Qualifications of witnesses.(5) Qualifications of agents.(6) Protection of third persons from liability.Comment. Section 4681 continues Section 4101, insofar as it applied

to powers of attorney for health care, without substantive change. Thissection makes clear that many of the statutory rules provided in thisdivision are subject to express or implicit limitations in the power ofattorney. If a statutory rule is not subject to control by the power ofattorney, this is stated explicitly, either in a particular section or as to agroup of sections.

See also Sections 4607 (“agent” defined), 4629 (“power of attorney forhealth care” defined), 4633 (“principal” defined).


§ 4682. When agent’s authority effective

4682. Unless otherwise provided in a power of attorney forhealth care, the authority of an agent becomes effective onlyon a determination that the principal lacks capacity, andceases to be effective on a determination that the principal hasrecovered capacity.

Comment. Section 4682 is drawn from Section 2(c) of the UniformHealth-Care Decisions Act (1993) and continues the substance of the lastpart of former Section 4720(a). See Sections 4657 (presumption ofcapacity), 4658 (determination of capacity and other medical conditions)& Comment. As under former law, the default rule is that the agent is notauthorized to make health care decisions if the principal has the capacityto make health care decisions. The power of attorney may, however, givethe agent authority to make health care decisions for the principal eventhough the principal does have capacity, but the power of attorney isalways subject to Section 4695 (revocation of advance directive).

See also Sections 4607 (“agent” defined), 4609 (“capacity” defined),4629 (“power of attorney for health care” defined), 4633 (“principal”defined).

Background from Uniform Act. Section 2(c) provides that theauthority of the agent to make health-care decisions ordinarily does notbecome effective until the principal is determined to lack capacity andceases to be effective should the principal recover capacity. A principalmay provide, however, that the authority of the agent becomes effectiveimmediately or upon the happening of some event other than the loss ofcapacity but may do so only by an express provision in the power ofattorney. For example, a mother who does not want to make her ownhealth-care decisions but prefers that her daughter make them for hermay specify that the daughter as agent is to have authority to makehealth-care decisions immediately. The mother in that circumstanceretains the right to later revoke the power of attorney as provided inSection 3 [Prob. Code § 4696]. [Adapted from Unif. Health-CareDecisions Act § 2(c) comment (1993).]

§ 4683. Scope of agent’s authority

4683. Subject to any limitations in the power of attorney forhealth care:

(a) An agent designated in the power of attorney may makehealth care decisions for the principal to the same extent the


principal could make health care decisions if the principal hadthe capacity to do so.

(b) The agent may also make decisions that may beeffective after the principal’s death, including the following:

(1) Making a disposition under the Uniform AnatomicalGift Act (Chapter 3.5 (commencing with Section 7150) ofPart 1 of Division 7 of the Health and Safety Code).

(2) Authorizing an autopsy under Section 7113 of theHealth and Safety Code.

(3) Directing the disposition of remains under Section 7100of the Health and Safety Code.

Comment. Section 4683 continues former Section 4720(b) withoutsubstantive change. Subdivision (a) is consistent with the last part of thefirst sentence of Section 2(b) of the Uniform Health-Care Decisions Act(1993). Technical revisions have made to conform to the language of thisdivision. See Section 4658 (determination of capacity and other medicalconditions). The agent’s authority is subject to Section 4652 whichprecludes consent to certain specified types of treatment. See alsoSection 4653 (impermissible acts and constructions). The principal is freeto provide any limitations on types of treatment in the durable power ofattorney that are desired. See also Section 4750 et seq. (judicialproceedings).

The description of certain post-death decisions in subdivision (b) is notintended to limit the authority to make such decisions under thegoverning statutes in the Health and Safety Code.

See also Sections 4607 (“agent” defined), 4609 (“capacity” defined),4615 (“health care” defined), 4617 (“health care decision” defined), 4629(“power of attorney for health care” defined), 4635 (“reasonablyavailable” defined).

§ 4684. Standard governing agent’s health care decisions

4684. An agent shall make a health care decision inaccordance with the principal’s individual health careinstructions, if any, and other wishes to the extent known tothe agent. Otherwise, the agent shall make the decision inaccordance with the agent’s determination of the principal’sbest interest. In determining the principal’s best interest, the


agent shall consider the principal’s personal values to theextent known to the agent.

Comment. Section 4684 continues the substance of former Section4720(c) and is the same as Section 2(e) of the Uniform Health-CareDecisions Act (1993). Although the new wording of this fundamentalrule is different, Section 4684 continues the principle of former law that,in exercising authority, the agent has the duty to act consistent with theprincipal’s desires if known or, if the principal’s desires are unknown, toact in the best interest of the principal. The agent’s authority is subject toSection 4652, which precludes consent to certain specified types oftreatment. See also Section 4653 (mercy killing, assisted suicide,euthanasia not approved). The principal is free to provide any limitationson types of treatment in the power of attorney that are desired. See alsoSection 4750 et seq. (judicial proceedings). This fundamental standard isalso applicable to decisions made by surrogate committees. See Section4714.

See also Sections 4607 (“agent” defined), 4623 (“individual healthcare instruction” defined), 4633 (“principal” defined).

Background from Uniform Act. Section 2(e) requires the agent tofollow the principal’s individual instructions and other expressed wishesto the extent known to the agent. To the extent such instructions or otherwishes are unknown, the agent must act in the principal’s best interest. Indetermining the principal’s best interest, the agent is to consider theprincipal’s personal values to the extent known to the agent. The Actdoes not prescribe a detailed list of factors for determining the principal’sbest interest but instead grants the agent discretion to ascertain and weighthe factors likely to be of importance to the principal. [Adapted fromUnif. Health-Care Decisions Act § 2(e) comment (1993).]

§ 4685. Agent’s priority

4685. Unless the power of attorney for health care providesotherwise, the agent designated in the power of attorney whois known to the health care provider to be reasonablyavailable and willing to make health care decisions haspriority over any other person in making health care decisionsfor the principal.

Comment. Section 4685 continues without substantive change the firstpart of former Section 4720(a) and part of former Section 4652(a)relating to availability, willingness, and ability of agents. This sectiongives the agent priority over others, including a conservator or statutory


surrogate, to make health care decisions if the agent is known to thehealth care provider to be available and willing to act. See Section 4710(statutory surrogate’s authority dependent on appointment andavailability of agent). The power of attorney may vary this priority, asrecognized in the introductory clause, and the rule of this section issubject to a contrary court order. See Section 4766. In part, this sectionserves the same purpose as Section 6(b) of the Uniform Health-CareDecisions Act (1993).

See also Sections 4607 (“agent” defined), 4617 (“health care decision”defined), 4621 (“health care provider” defined), 4629 (“power ofattorney for health care” defined), 4633 (“principal” defined), 4635(“reasonably available” defined).

§ 4686. Duration

4686. Unless the power of attorney for health care providesa time of termination, the authority of the agent is exercisablenotwithstanding any lapse of time since execution of thepower of attorney.

Comment. Section 4686 continues Section 4127, insofar as it appliedto powers of attorney for health care, without substantive change. Thisrule is the same in substance as the second sentence of the official text ofSection 2 of the Uniform Durable Power of Attorney Act (1987),Uniform Probate Code Section 5-502 (1991). See Section 2(b)(construction of provisions drawn from uniform acts).

See also Sections 4607 (“agent” defined), 4629 (“power of attorney forhealth care” defined).

§ 4687. Other authority of person named as agent not affected

4687. Nothing in this division affects any right the persondesignated as an agent under a power of attorney for healthcare may have, apart from the power of attorney, to make orparticipate in making health care decisions for the principal.

Comment. Section 4687 continues former Section 4720(d) withoutsubstantive change, and supersedes part of former Section 4652(a). Anagent may, without liability, decline to act under the power of attorney.For example, the agent may not be willing to follow the desires of theprincipal as stated in the power of attorney because of changedcircumstances. This section makes clear that, in such a case, the personmay make or participate in making health care decisions for the principalwithout being bound by the stated desires of the principal to the extent


that the person designated as the agent has the right under the applicablelaw apart from the power of attorney. See Section 4722(b)(3) (patientrepresentative on surrogate committee).

See also Sections 4607 (“agent” defined), 4617 (“health care decision”defined), 4629 (“power of attorney for health care” defined), 4633(“principal” defined).

§ 4688. Relation to general agency law

4688. Where this division does not provide a rule governingagents under powers of attorney, the law of agency applies.

Comment. Section 4688 is analogous to Section 4051 in the Power ofAttorney Law. Under this section, reference may be made to relevantagency principles set forth in case law and statutes. See, e.g., Civ. Code§§ 2019 et seq., 2295 et seq.; Prob. Code § 4000 et seq. (Power ofAttorney Law).

Article 3. Revocation of Advance Directives

§ 4695. Revocation of advance health care directive

4695. (a) A patient having capacity may revoke thedesignation of an agent only by a signed writing or bypersonally informing the supervising health care provider.

(b) A patient having capacity may revoke all or part of anadvance health care directive, other than the designation of anagent, at any time and in any manner that communicates anintent to revoke.

Comment. Section 4695 is drawn from Section 3(a)-(b) of theUniform Health-Care Decisions Act (1993). This section replaces formerSection 4727(a) (revocation rules applicable to durable power of attorneyfor health care) and former Health and Safety Code Section 7188(a)(revocation under former Natural Death Act). This section alsosupersedes Sections 4150 and 4151 in the Power of Attorney Law to theextent they applied to powers of attorney for health care. The principalmay revoke the designation or authority only if, at the time of revocation,the principal has sufficient capacity to make a power of attorney forhealth care. The burden of proof is on the person who seeks to establishthat the principal did not have capacity to revoke the designation orauthority. See Section 4657 (presumption of capacity). “Personally


informing,” as used in subdivision (a), includes both oral and writtencommunications.

See also Sections 4605 (“advance health care directive” defined), 4625(“patient” defined), 4629 (“power of attorney for health care” defined),4641 (“supervising health care provider” defined).

Background from Uniform Act. Section 3(b) provides that anindividual may revoke any portion of an advance health-care directive atany time and in any manner that communicates an intent to revoke.However, a more restrictive standard applies to the revocation of theportion of a power of attorney for health care relating to the designationof an agent. Section 3(a) provides that an individual may revoke thedesignation of an agent only by a signed writing or by personallyinforming the supervising health-care provider. This higher standard isjustified by the risk of a false revocation of an agent’s designation or of amisinterpretation or miscommunication of a principal’s statementcommunicated through a third party. For example, without this higherstandard, an individual motivated by a desire to gain control over apatient might be able to assume authority to act as agent by falselyinforming a health-care provider that the principal no longer wishes thepreviously designated agent to act but instead wishes to appoint theindividual.

The section does not specifically address amendment of an advancehealth-care directive because such reference is not necessary. Section3(b) specifically authorizes partial revocation, and Section 3(e) [Prob.Code § 4698] recognizes that an advance health-care directive may bemodified by a later directive.

[Adapted from Unif. Health-Care Decisions Act § 3(a)-(b), (e)comment (1993).]

§ 4696. Duty to communicate revocation

4696. A health care provider, agent, conservator, orsurrogate who is informed of a revocation of an advancehealth care directive shall promptly communicate the fact ofthe revocation to the supervising health care provider and toany health care institution where the patient is receiving care.

Comment. Section 4696 is the same as Section 3(c) of the UniformHealth-Care Decisions Act (1993).

See also Sections 4605 (“advance health care directive” defined), 4607(“agent” defined), 4613 (“conservator” defined), 4619 (“health careinstitution” defined), 4621 (“health care provider” defined), 4625


(“patient” defined), 4641 (“supervising health care provider” defined),4643 (“surrogate” defined).

Background from Uniform Act. Section 3(c) requires any health-careprovider, agent, [conservator] or surrogate who is informed of arevocation to promptly communicate that fact to the supervising health-care provider and to any health-care institution at which the patient isreceiving care. The communication triggers the Section 7(b) [Prob. Code§ 4731] obligation of the supervising health-care provider to record therevocation in the patient’s health-care record and reduces the risk that ahealth-care provider or agent, [conservator] or surrogate will rely on ahealth-care directive that is no longer valid. [Adapted from Unif. Health-Care Decisions Act § 3(c) comment (1993).]

§ 4697. Effect of dissolution or annulment

4697. (a) If after executing a power of attorney for healthcare the principal’s marriage to the agent is dissolved orannulled, the principal’s designation of the former spouse asan agent to make health care decisions for the principal isrevoked.

(b) If the agent’s authority is revoked solely by subdivision(a), it is revived by the principal’s remarriage to the agent.

Comment. Section 4697 continues former Section 4727(e) withoutsubstantive change. Subdivision (a) is comparable to Section 3(d) of theUniform Health-Care Decisions Act (1993), but does not revoke thedesignation of an agent on legal separation. For special rules applicableto a federal “absentee” (as defined in Section 1403), see Section 3722.

This section is subject to limitation by the power of attorney. SeeSection 4681 (limitations expressed in power of attorney for health care).See also Sections 4607 (“agent” defined), 4617 (“health care decision”defined), 4629 (“power of attorney for health care” defined), 4633(“principal” defined).

§ 4698. Effect of later advance directive on earlier advance directive

4698. An advance health care directive that conflicts withan earlier advance directive revokes the earlier advancedirective to the extent of the conflict.

Comment. Section 4698 is the same as Section 3(e) of the UniformHealth-Care Decisions Act (1993) and supersedes former Section


4727(d). This section is also consistent with former Health and SafetyCode Section 7193 (Natural Death Act).

See also Section 4605 (“advance health care directive” defined).Background from Uniform Act. Section 3(e) establishes a rule of

construction permitting multiple advance health-care directives to beconstrued together in order to determine the individual’s intent, with thelater advance health-care directive superseding the former to the extent ofany inconsistency. [Adapted from Unif. Health-Care Decisions Act §3(e) comment (1993).]

CHAPTER 2. ADVANCE HEALTHCARE DIRECTIVE FORMS

§ 4700. Authorization for statutory form of advance directive

4700. The form provided in Section 4701 may, but neednot, be used to create an advance health care directive. Theother sections of this division govern the effect of the form orany other writing used to create an advance health caredirective. An individual may complete or modify all or anypart of the form in Section 4701.

Comment. Section 4700 is drawn from the introductory paragraph ofSection 4 of the Uniform Health-Care Decisions Act (1993). This sectionsupersedes former Section 4779 (use of other forms).

See also Section 4605 (“advance health care directive” defined).

§ 4701. Optional form of advance directive

4701. The statutory advance health care directive form is asfollows:

ADVANCE HEALTH CARE DIRECTIVE(California Probate Code Section 4701)

Explanation

You have the right to give instructions about your ownhealth care. You also have the right to name someone else tomake health care decisions for you. This form lets you doeither or both of these things. It also lets you express your


wishes regarding donation of organs and the designation ofyour primary physician. If you use this form, you maycomplete or modify all or any part of it. You are free to use adifferent form.

Part 1 of this form is a power of attorney for health care.Part 1 lets you name another individual as agent to makehealth care decisions for you if you become incapable ofmaking your own decisions or if you want someone else tomake those decisions for you now even though you are stillcapable. You may also name an alternate agent to act for youif your first choice is not willing, able, or reasonably availableto make decisions for you. (Your agent may not be anoperator or employee of a community care facility or aresidential care facility where you are receiving care, or yoursupervising health care provider or employee of the healthcare institution where you are receiving care, unless youragent is related to you or is a co-worker.)

Unless the form you sign limits the authority of your agent,your agent may make all health care decisions for you. Thisform has a place for you to limit the authority of your agent.You need not limit the authority of your agent if you wish torely on your agent for all health care decisions that may haveto be made. If you choose not to limit the authority of youragent, your agent will have the right to:

(a) consent or refuse consent to any care, treatment,service, or procedure to maintain, diagnose, orotherwise affect a physical or mental condition;

(b) select or discharge health care providers andinstitutions;

(c) approve or disapprove diagnostic tests, surgicalprocedures, and programs of medication;

(d) direct the provision, withholding, or withdrawal ofartificial nutrition and hydration and all other formsof health care, including cardiopulmonaryresuscitation; and


(e) make anatomical gifts, authorize an autopsy, anddirect disposition of remains.

Part 2 of this form lets you give specific instructions aboutany aspect of your health care, whether or not you appoint anagent. Choices are provided for you to express your wishesregarding the provision, withholding, or withdrawal oftreatment to keep you alive, as well as the provision of painrelief. Space is also provided for you to add to the choicesyou have made or for you to write out any additional wishes.If you are satisfied to allow your agent to determine what isbest for you in making end-of-life decisions, you need not fillout Part 2 of this form.

Part 3 of this form lets you express an intention to donateyour bodily organs and tissues following your death.

Part 4 of this form lets you designate a physician to haveprimary responsibility for your health care.

After completing this form, sign and date the form at theend. It is recommended but not required that you request twoother adults to sign as witnesses. Give a copy of the signedand completed form to your physician, to any other healthcare providers you may have, to any health care institution atwhich you are receiving care, and to any health care agentsyou have named. You should talk to the person you havenamed as agent to make sure that he or she understands yourwishes and is willing to take the responsibility.

You have the right to revoke this advance health caredirective or replace this form at any time.

* * * * * * * * * * * * * * * * *


PART 1

POWER OF ATTORNEY FOR HEALTH CARE

(1.1) DESIGNATION OF AGENT: I designate the followingindividual as my agent to make health care decisions for me:

(name of individual you choose as agent)

(address) (city) (state) (zip code)

(home phone) (work phone)

OPTIONAL: If I revoke my agent’s authority or if my agent isnot willing, able, or reasonably available to make a health caredecision for me, I designate as my first alternate agent:

(name of individual you choose as first alternate agent)



OPTIONAL: If I revoke the authority of my agent and firstalternate agent or if neither is willing, able, or reasonably availableto make a health care decision for me, I designate as my secondalternate agent:


(name of individual you choose as second alternate agent)



(1.2) AGENT’S AUTHORITY: My agent is authorized to makeall health care decisions for me, including decisions to provide,withhold, or withdraw artificial nutrition and hydration and allother forms of health care to keep me alive, except as I state here:

(Add additional sheets if needed.)

(1.3) WHEN AGENT’S AUTHORITY BECOMESEFFECTIVE: My agent’s authority becomes effective when myprimary physician determines that I am unable to make my ownhealth care decisions unless I mark the following box. If I markthis box ■, my agent’s authority to make health care decisions forme takes effect immediately.

(1.4) AGENT’S OBLIGATION: My agent shall make healthcare decisions for me in accordance with this power of attorney forhealth care, any instructions I give in Part 2 of this form, and myother wishes to the extent known to my agent. To the extent mywishes are unknown, my agent shall make health care decisions forme in accordance with what my agent determines to be in my bestinterest. In determining my best interest, my agent shall considermy personal values to the extent known to my agent.


(1.5) AGENT’S POST-DEATH AUTHORITY: My agent isauthorized to make anatomical gifts, authorize an autopsy, anddirect disposition of my remains, except as I state here or in Part 3of this form:


(1.6) NOMINATION OF CONSERVATOR: If a conservator ofmy person needs to be appointed for me by a court, I nominate theagent designated in this form. If that agent is not willing, able, orreasonably available to act as conservator, I nominate the alternateagents whom I have named, in the order designated.

PART 2

INSTRUCTIONS FOR HEALTH CARE

If you fill out this part of the form, you may strike any wordingyou do not want.

(2.1) END-OF-LIFE DECISIONS: I direct that my health careproviders and others involved in my care provide, withhold, orwithdraw treatment in accordance with the choice I have markedbelow:

■ (a) Choice Not To Prolong LifeI do not want my life to be prolonged if (1) I have an incurable

and irreversible condition that will result in my death within arelatively short time, (2) I become unconscious and, to areasonable degree of medical certainty, I will not regainconsciousness, or (3) the likely risks and burdens of treatmentwould outweigh the expected benefits, OR


■ (b) Choice To Prolong LifeI want my life to be prolonged as long as possible within the

limits of generally accepted health care standards.

(2.2) RELIEF FROM PAIN: Except as I state in the followingspace, I direct that treatment for alleviation of pain or discomfortbe provided at all times, even if it hastens my death:


(2.3) OTHER WISHES: (If you do not agree with any of theoptional choices above and wish to write your own, or if you wishto add to the instructions you have given above, you may do sohere.) I direct that:


PART 3

DONATION OF ORGANS AT DEATH

(OPTIONAL)

(3.1) Upon my death (mark applicable box):

■ (a) I give any needed organs, tissues, or parts, OR

■ (b) I give the following organs, tissues, or parts only.

(c) My gift is for the following purposes (strike any of thefollowing you do not want):

(1) Transplant


(2) Therapy(3) Research(4) Education

PART 4

PRIMARY PHYSICIAN

(OPTIONAL)

(4.1) I designate the following physician as my primaryphysician:

(name of physician)


(phone)

OPTIONAL: If the physician I have designated above is notwilling, able, or reasonably available to act as my primaryphysician, I designate the following physician as my primaryphysician:

(name of physician)


(phone)

* * * * * * * * * * * * * * * * *


PART 5

(5.1) EFFECT OF COPY: A copy of this form has the sameeffect as the original.

(5.2) SIGNATURES: Sign and date the form here:

(date) (sign your name)

(address) (print your name)

(city) (state)

(Optional) SIGNATURES OF WITNESSES:

First witness Second witness

(print name) (print name)

(address) (address)

(city) (state) (city) (state)

(signature of witness) (signature of witness)

(date) (date)


PART 6

SPECIAL WITNESS REQUIREMENT

(6.1) The following statement is required only if you are apatient in a skilled nursing facility — a health care facility thatprovides the following basic services: skilled nursing care andsupportive care to patients whose primary need is for availabilityof skilled nursing care on an extended basis. The patient advocateor ombudsman must sign the following statement:

Statement of Patient Advocate or Ombudsman

I declare under penalty of perjury under the laws of Californiathat I am a patient advocate or ombudsman as designated by theState Department of Aging and that I am serving as a witness asrequired by Section 4673 of the Probate Code.

(date) (sign your name)

(address) (print your name)

(city) (state)

Comment. Section 4701 provides the contents of the optional statutoryform for the Advance Health Care Directive. Parts 1-5 of this form aredrawn from Section 4 of the Uniform Health-Care Decisions Act (1993).This form supersedes the Statutory Form Durable Power of Attorney forHealth Care in former Section 4771 and the related rules in formerSections 4772-4774, 4776-4778. Part 6 of this form continues a portionof the former statutory form applicable to patients in skilled nursingfacilities.

Background from Uniform Act. The optional form set forth in thissection incorporates the Section 2 [Prob. Code § 4670 et seq.]


requirements applicable to advance health-care directives. There are fourparts to the form. An individual may complete all or any parts of theform. Any part of the form left blank is not to be given effect. Forexample, an individual may complete the instructions for health care partof the form alone. Or an individual may complete the power of attorneyfor health care part of the form alone. Or an individual may completeboth the instructions and power of attorney for health care parts of theform. An individual may also, but need not, complete the parts of theform pertaining to donation of bodily organs and tissue and thedesignation of a primary physician.

Part 1, the power of attorney for health care, appears first on the formin order to ensure to the extent possible that it will come to the attentionof a casual reader. This reflects the reality that the appointment of anagent is a more comprehensive approach to the making of health-caredecisions than is the giving of an individual instruction, which cannotpossibly anticipate all future circumstances which might arise.

Part [1.1] of the power of attorney for health care form requires onlythe designation of a single agent, but with opportunity given to designatea single first alternate and a single second alternate, if the individualchooses. No provision is made in the form for the designation of co-agents in order not to encourage the practice. Designation of co-agents isdiscouraged because of the difficulties likely to be encountered if the co-agents are not all readily available or do not agree. If co-agents areappointed, the instrument should specify that either is authorized to act ifthe other is not reasonably available. It should also specify a method forresolving disagreements.

Part [1.2] of the power of attorney for health care form grants the agentauthority to make all health-care decisions for the individual subject toany limitations which the individual may state in the form. Reference ismade to artificial nutrition and hydration and other forms of treatment tokeep an individual alive in order to ensure that the individual is awarethat those are forms of health care that the agent would have the authorityto withdraw or withhold absent specific limitation.

Part [1.3] of the power of attorney for health care form provides thatthe agent’s authority becomes effective upon a determination that theindividual lacks capacity, but as authorized by Section 2(c) [Prob. Code §4682] a box is provided for the individual to indicate that the authority ofthe agent takes effect immediately.

Part [1.4] of the power of attorney for health care form directs theagent to make health-care decisions in accordance with the power ofattorney, any instructions given by the individual in Part 2 of the form,and the individual’s other wishes to the extent known to the agent. To theextent the individual’s wishes in the matter are not known, the agent is to


make health-care decisions based on what the agent determines to be inthe individual’s best interest. In determining the individual’s bestinterest, the agent is to consider the individual’s personal values to theextent known to the agent. Section 2(e) imposes this standard, whether ornot it is included in the form, but its inclusion in the form will bring it tothe attention of the individual granting the power, to the agent, to any[conservator] or surrogate, and to the individual’s health-care providers.

[Part 1.5 implements Probate Code Section 4683.]Part [1.6] of the power of attorney for health care form nominates the

agent, if available, able, and willing to act, otherwise the alternate agentsin order of priority stated, as [conservators] of the person for theindividual. This provision is included in the form for two reasons. First,if an appointment of a [conservator] becomes necessary the agent is theone whom the individual would most likely want to serve in that role.Second, the nomination of the agent as [conservator] will reduce thepossibility that someone other than the agent will be appointed as[conservator] who could use the position to thwart the agent’s authority.

Because the variety of treatment decisions to which health-careinstructions may relate is virtually unlimited, Part 2 of the form does notattempt to be comprehensive, but is directed at the types of treatment forwhich an individual is most likely to have special wishes. Part [2.1] ofthe form, entitled “End-of-Life Decisions,” provides two alternativechoices for the expression of wishes concerning the provision,withholding, or withdrawal of treatment. Under the first choice, theindividual’s life is not to be prolonged if the individual has an incurableand irreversible condition that will result in death within a relativelyshort time, if the individual becomes unconscious and, to a reasonabledegree of medical certainty, will not regain consciousness, or if the likelyrisks and burdens of treatment would outweigh the expected benefits.Under the second choice, the individual’s life is to be prolonged withinthe limits of generally accepted health-care standards.… Part [2.2] of theform provides space for an individual to specify any circumstance whenthe individual would prefer not to receive pain relief. Because the choicesprovided in Parts [2.1-2.2] do not cover all possible situations, Part [2.3]of the form provides space for the individual to write out his or her owninstructions or to supplement the instructions given in the previoussubparts of the form. Should the space be insufficient, the individual isfree to add additional pages.

The health-care instructions given in Part 2 of the form are binding onthe agent, any [conservator], any surrogate, and, subject to exceptionsspecified in Section 7(e)-(f) [Prob. Code §§ 4734-4735], on theindividual’s health-care providers. Pursuant to Section 7(d) [Prob. Code§ 4733], a health-care provider must also comply with a reasonable


interpretation of those instructions made by an authorized agent,[conservator], or surrogate.

Part 3 of the form provides the individual an opportunity to express anintention to donate bodily organs and tissues at death. The optionsprovided are derived from a suggested form in the Comment to Section 2of the Uniform Anatomical Gift Act (1987). [See Health & Safety Code§ 7150 et seq.]

Part 4 of the form provides space for the individual to designate aprimary physician should the individual choose to do so. Space is alsoprovided for the designation of an alternate primary physician should thefirst designated physician not be available, able, or willing to act.

[Part 5.1] of the form conforms with the provisions of Section 12[Prob. Code § 4660] by providing that a copy of the form has the sameeffect as the original.

The Act does not require witnessing, [except as provided in Prob. Code§ 4673,] but to encourage the practice [Part 5.2 of] the form providesspace for the signatures of two witnesses.

The form does not require formal acceptance by an agent. Formalacceptance by an agent has been omitted not because it is an undesirablepractice but because it would add another stage to executing an advancehealth-care directive, thereby further reducing the number of individualswho will follow through and create directives. However, practitionerswho wish to adapt this form for use by their clients are stronglyencouraged to add a formal acceptance. Designated agents have no dutyto act until they accept the office either expressly or through theirconduct. Consequently, requiring formal acceptance reduces the risk thata designated agent will decline to act when the need arises. Formalacceptance also makes it more likely that the agent will become familiarwith the principal’s personal values and views on health care. While theform does not require formal acceptance, the explanation to the formdoes encourage principals to talk to the person they have named as agentto make certain that the designated agent understands their wishes and iswilling to take the responsibility.

[Adapted from Unif. Health-Care Decisions Act § 4 comment (1993).]

CHAPTER 3. HEALTH CARE SURROGATES

§ 4710. Authority of surrogate to make health care decisions

4710. A surrogate who is designated or selected under thischapter may make health care decisions for a patient if all ofthe following conditions are satisfied:


(a) The patient has been determined by the primaryphysician to lack capacity.

(b) No agent has been designated under a power of attorneyfor health care and no conservator of the person has beenappointed with authority to make health care decisions, or theagent or conservator is not reasonably available.

Comment. Section 4710 is drawn from Section 5(a) of the UniformHealth-Care Decisions Act (1993). Section 4658 provides for capacitydeterminations by the primary physician under this division. Both thepatient and the surrogate must be adults. See Sections 4625 (“patient”defined), 4643 (“surrogate” defined). “Adult” includes an emancipatedminor. See Fam. Code §§ 7002 (emancipation), 7050 (emancipatedminor considered as adult for consent to medical, dental, or psychiatriccare).

See also Sections 4609 (“capacity” defined), 4613 (“conservator”defined), 4615 (“health care” defined), 4617 (“health care decision”defined), 4625 (“patient” defined), 4629 (“power of attorney for healthcare” defined), 4631 (“primary physician” defined), 4635 (“reasonablyavailable” defined), 4643 (“surrogate” defined).

Background from Uniform Act. Section 5(a) authorizes a surrogateto make a health-care decision for a patient who is an adult oremancipated minor if the patient lacks capacity to make health-caredecisions and if no agent or [conservator] has been appointed or the agentor [conservator] is not reasonably available. Health-care decision makingfor unemancipated minors is not covered by this section. The subject ofconsent for treatment of minors is a complex one which in many states iscovered by a variety of statutes and is therefore left to other state law.[Adapted from Unif. Health-Care Decisions Act § 5(a) comment (1993).]

§ 4711. Patient’s designation of surrogate

4711. A patient may designate an individual as a surrogateto make health care decisions by personally informing thesupervising health care provider. An oral designation of asurrogate is effective only during the course of treatment orillness or during the stay in the health care institution whenthe designation is made.

Comment. The first sentence of Section 4711 is drawn from Section5(b) of the Uniform Health-Care Decisions Act (1993). Both the patientand the surrogate must be adults. See Sections 4625 (“patient” defined),


4643 (“surrogate” defined). “Personally informing,” as used in thissection, includes both oral and written communications. The secondsentence is intended to guard against the possibility of giving effect toobsolete oral statements entered in the patient’s record.

See also Sections 4617 (“health care decision” defined), 4619 (“healthcare institution” defined), 4625 (“patient” defined), 4635 (“reasonablyavailable” defined), 4641 (“supervising health care provider” defined),4643 (“surrogate” defined).

Background from Uniform Act. While a designation of an agent in awritten power of attorney for health care is preferred, situations may arisewhere an individual will not be in a position to execute a power ofattorney for health care. In that event, subsection (b) affirms the principleof patient autonomy by allowing an individual to designate a surrogateby personally informing the supervising health-care provider. Thesupervising health-care provider would then, in accordance with Section7(b) [Prob. Code § 4731], be obligated to promptly record thedesignation in the individual’s health-care record. An oral designation ofa surrogate made by a patient directly to the supervising health-careprovider revokes a previous designation of an agent. See Section 3(a)[Prob. Code § 4695(a)]. [Adapted from Unif. Health-Care Decisions Act§ 5(b) comments (1993).]

§ 4712. Selection of statutory surrogate

4712. (a) Subject to Section 4710, if no surrogate has beendesignated under Section 4711 or if the designated surrogateis not reasonably available, the primary physician may selecta surrogate to make health care decisions for the patient fromamong the following adults with a relationship to the patient:

(1) The spouse, unless legally separated.(2) An adult in a long-term relationship of indefinite

duration with the patient in which the individual hasdemonstrated an actual commitment to the patient similar tothe commitment of a spouse and in which the individual andthe patient consider themselves to be responsible for eachother’s well-being and reside or have been residing together.This individual may be known as a domestic partner.

(3) Children.(4) Parents.


(5) Brothers and sisters.(6) Grandchildren.(7) Close friends.(b) The primary physician shall select the surrogate, with

the assistance of other health care providers or institutionalcommittees, in the order of priority set forth in subdivision(a), subject to the following conditions:

(1) Where there are multiple possible surrogates at the samepriority level, the primary physician shall select the individualwho appears after a good faith inquiry to be best qualified.

(2) The primary physician may select as the surrogate anindividual who is ranked lower in priority if, in the primaryphysician’s judgment, the individual is best qualified to serveas the patient’s surrogate.

(c) In determining the individual best qualified to serve asthe surrogate under this section, the following factors shall beconsidered:

(1) Whether the proposed surrogate appears to be best ableto make decisions in accordance with Section 4714.

(2) The degree of regular contact with the patient before andduring the patient’s illness.

(3) Demonstrated care and concern for the patient.(4) Familiarity with the patient’s personal values.(5) Availability to visit the patient.(6) Availability to engage in face-to-face contact with

health care providers for the purpose of fully participating inthe health care decisionmaking process.

(d) The primary physician may require a surrogate orproposed surrogate (1) to provide information to assist inmaking the determinations under this section and (2) toprovide information to family members and other personsconcerning the selection of the surrogate and communicatewith them concerning health care decisions for the patient.


(e) The primary physician shall document in the patient’shealth care record the reasons for selecting the surrogate.

Comment. Section 4712 is a new provision, drawn in part from WestVirginia law and the Uniform Health-Care Decisions Act (1993). SeeW.Va. Code § 16-30B-7 (1997); Unif. Health-Care Decisions Act § 5(b)-(c) (1993). Subdivision (a)(2) is drawn from New Mexico law. See N.M.Stat. Ann. § 24-7A-5(B)(2) (Westlaw 1998). “Adult” includes anemancipated minor. See Fam. Code § 7002 (emancipation). Aprospective surrogate and other persons may also seek judicial relief asprovided in Sections 4765-4766.

See also Sections 4617 (“health care decision” defined), 4625(“patient” defined), 4635 (“reasonably available” defined), 4641(“supervising health care provider” defined), 4643 (“surrogate” defined).

§ 4713. Selection of statutory surrogate

4713. (a) The surrogate designated or selected under thischapter shall promptly communicate his or her assumption ofauthority to all adults described in paragraphs (1) to (5),inclusive, of subdivision (a) of Section 4712 who can readilybe contacted.

(b) The supervising health care provider, in the case of asurrogate designation under Section 4711, or the primaryphysician, in the case of a surrogate selection under Section4712, shall inform the surrogate of the duty under subdivision(a).

Comment. Subdivision (a) of Section 4713 is drawn from Section 5(d)of the Uniform Health-Care Decisions Act (1993). The persons requiredto be notified are the spouse, domestic partner, adult children, parents,and adult siblings. See Section 4712(a)(1)-(5). There is no statutory dutyto notify the class of grandchildren or close friends. See Section4712(a)(6)-(7). However, all surrogates have the duty to notify undersubdivision (a), regardless of whether they would have a right to notice.

Subdivision (b) recognizes that the supervising health care provider orprimary physician is more likely to know of the duty in subdivision (a)than the surrogate, and so is in a position to notify the surrogate of theduty.

See also Sections 4629 (“primary physician” defined), 4639(“supervising health care provider” defined), 4643 (“surrogate” defined).


Background from Uniform Act. Section 5(d) [Prob. Code § 4713(a)]requires a surrogate who assumes authority to act to immediately sonotify [the persons described in subdivision (a)(1)-(5)] who in givencircumstances would be eligible to act as surrogate. Notice to thespecified family members will enable them to follow health-caredevelopments with respect to their now incapacitated relative. It will alsoalert them to take appropriate action, including the appointment of a[conservator] or the commencement of judicial proceedings underSection 14 [Prob. Code § 4750 et seq.], should the need arise. [Adaptedfrom Unif. Health-Care Decisions Act § 5(d) comment (1993).]

§ 4714. Standard governing surrogate’s health care decisions

4714. A surrogate shall make a health care decision inaccordance with the patient’s individual health careinstructions, if any, and other wishes to the extent known tothe surrogate. Otherwise, the surrogate shall make thedecision in accordance with the surrogate’s determination ofthe patient’s best interest. In determining the patient’s bestinterest, the surrogate shall consider the patient’s personalvalues to the extent known to the surrogate.

Comment. Section 4714 is drawn from Section 5(f) of the UniformHealth-Care Decisions Act (1993). This standard is consistent with thehealth care decisionmaking standard applicable to agents. See Section4684.

See also Sections 4617 (“health care decision” defined), 4623(“individual health care instruction” defined), 4625 (“patient” defined),4643 (“surrogate” defined).

Background from Uniform Act. Section 5(f) imposes on surrogatesthe same standard for health-care decision making as is prescribed foragents in Section 2(e) [Prob. Code § 4684]. The surrogate must followthe patient’s individual instructions and other expressed wishes to theextent known to the surrogate. To the extent such instructions or otherwishes are unknown, the surrogate must act in the patient’s best interest.In determining the patient’s best interest, the surrogate is to consider thepatient’s personal values to the extent known to the surrogate. [Adaptedfrom Unif. Health-Care Decisions Act § 5(f) comment (1993).]


§ 4715. Disqualification of surrogate

4715. A patient having capacity at any time may disqualifyanother person, including a member of the patient’s family,from acting as the patient’s surrogate by a signed writing orby personally informing the supervising health care providerof the disqualification.

Comment. Section 4715 is drawn from Section 5(h) of the UniformHealth-Care Decisions Act (1993). See Section 4731 (duty to recordsurrogate’s disqualification). “Personally informing,” as used in thissection, includes both oral and written communications.

See also Sections 4625 (“patient” defined), 4641 (“supervising healthcare provider” defined), 4643 (“surrogate” defined).

Background from Uniform Act. Section 5(h) permits an individual todisqualify any family member or other individual from acting as theindividual’s surrogate, including disqualification of a surrogate who wasorally designated. [Adapted from Unif. Health-Care Decisions Act § 5(h)comment (1993).]

§ 4716. Reassessment of surrogate selection

4716. (a) If a surrogate selected pursuant to Section 4712 isnot reasonably available, the surrogate may be replaced.

(b) If an individual who ranks higher in priority undersubdivision (a) of Section 4712 relative to a selectedsurrogate becomes reasonably available, the individual withhigher priority may be substituted for the selected surrogateunless the primary physician determines that the lower rankedindividual is best qualified to serve as the surrogate.

Comment. Section 4716 is drawn from West Virginia law. See W. Va.Code § 16-30B-7 (1997). A surrogate is replaced in the circumstancesdescribed in this section by applying the rules in Section 4712. Thedetermination of whether a surrogate has become unavailable or whethera higher priority potential surrogate has become reasonably available ismade by the primary physician under Section 4712 and this section.Accordingly, a person who believes it is appropriate to reassess thesurrogate selection would need to communicate with the primaryphysician.

See also Sections 4631 (“primary physician” defined), 4635(“reasonably available” defined), 4643 (“surrogate” defined).


CHAPTER 4. HEALTH CARE DECISIONS FORPATIENTS WITHOUT SURROGATES

§ 4720. Application of chapter

4720. This chapter applies where a health care decisionneeds to be made for a patient and all of the followingconditions are satisfied:

(a) The patient has been determined by the primaryphysician to lack capacity.

(b) No agent has been designated under a power of attorneyfor health care and no conservator of the person has beenappointed with authority to make health care decisions, or theagent or conservator is not reasonably available.

(c) No surrogate can be selected under Chapter 3(commencing with Section 4710) or the surrogate is notreasonably available.

(d) No dispositive individual health care instruction is in thepatient’s record.

Comment. Section 4720 is new. The procedure in this chapter isdrawn in part from and supersedes former Health and Safety CodeSection 1418.8 applicable to medical interventions in long-term carefacilities. This chapter does not apply to emergency health care. SeeSection 4651(b)(2).

See also Sections 4607 (“agent” defined), 4609 (“capacity” defined),4613 (“conservator” defined), 4617 (“health care decision” defined),4623 (“individual health care instruction” defined), 4625 (“patient”defined), 4631 (“primary physician” defined), 4635 (“reasonablyavailable” defined), 4643 (“surrogate” defined).

§ 4721. Referral to surrogate committee

4721. A patient’s primary physician may obtain approvalfor a proposed health care decision by referring the matter to asurrogate committee before the health care decision isimplemented.

Comment. Section 4721 is new. It supersedes former Health andSafety Code Section 1418.8(d) applicable to medical interventions inlong-term care facilities. The procedure for making health care decisions


on behalf of incapacitated adults with no other surrogate decisionmakersis optional and it does not displace any other means for making suchdecisions. See, e.g., Section 3200 et seq. (court authorized health caredecisions). The scope of a health care decision depends on thecircumstances and may include a course of treatment. See Section 4617Comment.

See also Sections 4617 (“health care decision” defined), 4625(“patient” defined), 4631 (“primary physician” defined), 4635(“reasonably available” defined), 4643 (“surrogate” defined).

§ 4722. Composition of surrogate committee

4722. (a) A surrogate committee may be established by thehealth care institution. If a surrogate committee has not beenestablished by the patient’s health care institution, or if thepatient is not a patient in a health care institution, thesurrogate committee may be established by the county healthofficer or as otherwise determined by the county board ofsupervisors.

(b) The surrogate committee shall include the followingindividuals:

(1) The patient’s primary physician.(2) A professional nurse with responsibility for the patient

and with knowledge of the patient’s condition.(3) A patient representative or community member. The

patient representative may be a family member or friend ofthe patient who is unable to take full responsibility for thepatient’s health care decisions, but has agreed to serve on thesurrogate committee. A community member is an adult whois not employed by or regularly associated with the primaryphysician, the health care institution, or employees of thehealth care institution.

(c) In cases involving withholding or withdrawing life-sustaining treatment or other critical health care decisions, inaddition to the individuals described in subdivision (b), thesurrogate committee shall include a member of the health careinstitution’s ethics committee or an outside ethics consultant.


(d) This section provides minimum guidelines for thecomposition of the surrogate committee and is not intended torestrict participation by other appropriate persons, includinghealth care institution staff in disciplines as determined by thepatient’s needs.

Comment. Section 4722 is new. Subdivision (a) provides forestablishment of surrogate committees.

Subdivision (b) is drawn in part from provisions of former Health andSafety Code Section 1418.8(e)-(f) applicable to medical interventions inlong-term care facilities. Subdivision (b)(3) makes clear that a personwho may be qualified to serve as a surrogate under Chapter 3(commencing with Section 4710) may still participate in health caredecisionmaking as a patient representative. As provided in subdivision(b), the surrogate committee must always include at least three persons,the primary physician, a professional nurse, and a patient representativeor community member. Subdivision (c) requires an additional ethicsadvisor in cases involving life-sustaining treatment or other criticalhealth care decisions. The statute does not attempt to define “critical”health care decisions because of the vast variety of factual circumstances.Routine medical interventions of a type governed by former Health andSafety Code Section 1418.8 would generally not be included in the classof critical health care decisions. However, major surgery, amputation,and treatments involving a significant risk should require participation ofan ethicist under subdivision (c).

See also Sections 4615 (“health care” defined), 4617 (“health caredecision” defined), 4619 (“health care institution” defined), 4625(“patient” defined), 4631 (“primary physician” defined).

§ 4723. Conduct and standards of review by surrogate committee

4723. (a) The surrogate committee’s review of proposedhealth care shall include all of the following:

(1) A review of the primary physician’s assessment of thepatient’s condition.

(2) The reason for the proposed health care decision.(3) A discussion of the desires of the patient, if known. To

determine the desires of the patient, the surrogate committeeshall interview the patient, if the patient is capable ofcommunicating, review the patient’s medical records, and


consult with family members or friends, if any have beenidentified.

(4) The type of health care to be administered in thepatient’s care, including its probable frequency and duration.

(5) The probable impact on the patient’s condition, with andwithout administration of the proposed health care.

(6) Reasonable alternative health care decisions consideredor administered, and reasons for their discontinuance orinappropriateness.

(b) The surrogate committee shall periodically evaluate theresults of an approved health care decision, as appropriateunder applicable standards of health care.

Comment. Section 4723 is new and is patterned after provisions offormer Health and Safety Code Section 1418.8(e) applicable to medicalinterventions in long-term care facilities.

Subdivision (b) generalizes the duty to evaluate periodically underformer Health and Safety Code Section 1418.8(g), but does not provideany particular time period, as under former law.

See also Sections 4617 (“health care decision” defined), 4625(“patient” defined), 4631 (“primary physician” defined), 4722(composition of surrogate committee).

§ 4724. Decisionmaking by surrogate committee

4724. (a) The surrogate committee shall attempt to reachconsensus on proposed health care decisions, but mayapprove proposed health care decisions by majority vote.However, proposed health care decisions relating towithholding or withdrawing life-sustaining treatment may notbe approved if any member of the surrogate committee isopposed.

(b) The surrogate committee shall keep a record of itsmembership, showing who participated in making a healthcare decision with regard to a patient, and the result of votestaken, and shall keep a record of its deliberations andconclusions under Section 4723.


Comment. Section 4724 is new. The principle of decisionmaking by amajority in subdivision (a) is consistent with the rule applicable tostatutory surrogates under Section 5(e) of the Uniform Health-CareDecisions Act (1993). With respect to medical interventions in long-termcare facilities, this section supersedes part of the second sentence offormer Health and Safety Code Section 1418.8(e) relating to the “teamapproach to assessment and care planning.” For the standard governingsurrogate decisionmaking generally, see Section 4714. Decisions relatingto withholding or withdrawal of life-sustaining treatment are subject to ahigher standard. If any surrogate committee member votes against theproposed health care decision, the proposal fails; however, an abstentionis not counted as opposition.

Subdivision (b) requires that records be kept of the membership,voting, and deliberations of the surrogate committee. This is in additionto any other recordkeeping requirements applicable under this part.

See also Sections 4617 (“health care decision” defined), 4722(composition of surrogate committee). For provisions concerning judicialproceedings, see Sections 4765(d) (petitioners), 4766 (purposes ofpetition).

§ 4725. General surrogate rules applicable to surrogate committee

4725. Provisions applicable to health care decisionmaking,duties, and immunities of surrogates apply to a surrogatecommittee and its members.

Comment. Section 4725 is new. For provisions applicable to healthcare surrogates generally, see Chapter 3 (commencing with Section4710), Section 4741 (immunities of surrogate). See also Section 4653(mercy killing, assisted suicide, euthanasia not approved). For a list ofsections applicable to surrogates, see Section 4643 Comment. For thestandard governing surrogate decisionmaking generally, see Section4714.

See also Sections 4617 (“health care decision” defined), 4643(“surrogate” defined), 4722 (composition of surrogate committee).

§ 4726. Review of emergency care

4726. In a case subject to this chapter where emergencycare is administered without approval by a surrogatecommittee, if the emergency results in the application ofphysical or chemical restraints, the surrogate committee shall


meet within one week of the emergency for an evaluation ofthe health care decision.

Comment. Section 4726 generalizes former Health and Safety CodeSection 1418.8(h).

CHAPTER 5. DUTIES OF HEALTH CARE PROVIDERS

§ 4730. Supervising health care provider’s duty to communicate

4730. Before implementing a health care decision made fora patient, a supervising health care provider, if possible, shallpromptly communicate to the patient the decision made andthe identity of the person making the decision.

Comment. Section 4730 is drawn from Section 7(a) of the UniformHealth-Care Decisions Act (1993). The duty to communicate the identityof the decisionmaker also applies to a surrogate committee. See Section4725 (general surrogate rules applicable to surrogate committee).

See also Sections 4617 (“health care decision” defined), 4625(“patient” defined), 4641 (“supervising health care provider” defined).

Background from Uniform Act. Section 7(a) further reinforces theAct’s respect for patient autonomy by requiring a supervising health-careprovider, if possible, to promptly communicate to a patient, prior toimplementation, a health-care decision made for the patient and theidentity of the person making the decision. [Adapted from Unif. Health-Care Decisions Act § 7(a) comment (1993).]

§ 4731. Supervising health care provider’s duty to record relevantinformation

4731. (a) A supervising health care provider who knows ofthe existence of an advance health care directive, a revocationof an advance health care directive, or a designation ordisqualification of a surrogate, shall promptly record itsexistence in the patient’s health care record and, if it is inwriting, shall request a copy. If a copy is furnished, thesupervising health care provider shall arrange for itsmaintenance in the patient’s health care record.

(b) A supervising health care provider who knows of arevocation of a power of attorney for health care or a


disqualification of a surrogate shall make a reasonable effortto notify the agent or surrogate of the revocation ordisqualification.

Comment. Subdivision (a) of Section 4731 is drawn from Section 7(b)of the Uniform Health-Care Decisions Act (1993). With respect torecording notice of revocation of a power of attorney for health care, thissection continues the substance of part of former Section 4727(b). Therecordkeeping duty continues part of former Health and Safety CodeSection 7186.5(c) (Natural Death Act).

Subdivision (b) continues the substance of part of former Section4727(b) and applies the same duty to surrogate disqualification.

See also Sections 4605 (“advance health care directive” defined), 4625(“patient” defined), 4629 (“power of attorney for health care” defined),4641 (“supervising health care provider” defined), 4643 (“surrogate”defined).

Background from Uniform Act. The recording requirement inSection 7(b) reduces the risk that a health-care provider or institution, oragent, [conservator] or surrogate, will rely on an outdated individualinstruction or the decision of an individual whose authority has beenrevoked. [Adapted from Unif. Health-Care Decisions Act § 7(b)comment (1993).]

§ 4732. Primary physician’s duty to record relevant information

4732. A primary physician who makes or is informed of adetermination that a patient lacks or has recovered capacity,or that another condition exists affecting an individual healthcare instruction or the authority of an agent, conservator ofthe person, or surrogate, shall promptly record thedetermination in the patient’s health care record andcommunicate the determination to the patient, if possible, andto a person then authorized to make health care decisions forthe patient.

Comment. Section 4732 is drawn from Section 7(c) of the UniformHealth-Care Decisions Act (1993). This duty also applies to a surrogatecommittee. See Section 4725 (general surrogate rules applicable tosurrogate committee). This duty generally continues recordkeeping dutiesin former Health and Safety Code Sections 7186.5(c) and 7189 (NaturalDeath Act).


See also Sections 4607 (“agent” defined), 4609 (“capacity” defined),4613 (“conservator” defined), 4617 (“health care decision” defined),4623 (“individual health care instruction” defined), 4625 (“patient”defined), 4631 (“primary physician” defined).

Background from Uniform Act. Section 7(c) imposes recording andcommunication requirements relating to determinations that may triggerthe authority of an agent, [conservator] or surrogate to make health-caredecisions on an individual’s behalf. The determinations covered by theserequirements are those specified in Sections 2(c)-(d) and 5(a) [Prob.Code §§ 4658, 4682 & 4710 respectively]. [Adapted from Unif. Health-Care Decisions Act § 7(c) comment (1993).]

§ 4733. Duty of health care provider or institution to comply withhealth care instructions and decisions

4733. Except as provided in Sections 4734 and 4735, ahealth care provider or health care institution providing careto a patient shall do the following:

(a) Comply with an individual health care instruction of thepatient and with a reasonable interpretation of that instructionmade by a person then authorized to make health caredecisions for the patient.

(b) Comply with a health care decision for the patient madeby a person then authorized to make health care decisions forthe patient to the same extent as if the decision had been madeby the patient while having capacity.

Comment. Section 4733 is drawn from Section 7(d) of the UniformHealth-Care Decisions Act (1993). This section generalizes a duty tocomply provided in former Health and Safety Code Section 7187.5 (2dsentence) (Natural Death Act).

See also Sections 4609 (“capacity” defined), 4617 (“health caredecision” defined), 4619 (“health care institution” defined), 4621(“health care provider” defined), 4623 (“individual health careinstruction” defined), 4625 (“patient” defined).

Background from Uniform Act. Section 7(d) requires health-careproviders and institutions to comply with a patient’s individualinstruction and with a reasonable interpretation of that instruction madeby a person then authorized to make health-care decisions for the patient.A health-care provider or institution must also comply with a health-caredecision made by a person then authorized to make health-care decisions


for the patient to the same extent as if the decision had been made by thepatient while having capacity. These requirements help to protect thepatient’s rights to autonomy and self-determination and validate and seekto effectuate the substitute decision making authorized by the Act.[Adapted from Unif. Health-Care Decisions Act § 7(d) comment (1993).]

§ 4734. Right to decline for reasons of conscience or institutionalpolicy

4734. (a) A health care provider may decline to complywith an individual health care instruction or health caredecision for reasons of conscience.

(b) A health care institution may decline to comply with anindividual health care instruction or health care decision if theinstruction or decision is contrary to a policy of the institutionthat is expressly based on reasons of conscience and if thepolicy was timely communicated to the patient or to a personthen authorized to make health care decisions for the patient.

Comment. Section 4734 is drawn from Section 7(e) of the UniformHealth-Care Decisions Act (1993).

See also Sections 4615 (“health care” defined), 4619 (“health careinstitution” defined), 4621 (“health care provider” defined), 4623(“individual health care instruction” defined), 4625 (“patient” defined).

Background from Uniform Act. Not all instructions or decisionsmust be honored, however. Section 7(e) [Prob. Code § 4734(a)]authorizes a health-care provider to decline to comply with an individualinstruction or health-care decision for reasons of conscience. Section 7(e)also allows a health-care institution to decline to comply with a health-care instruction or decision if the instruction or decision is contrary to apolicy of the institution which is expressly based on reasons ofconscience and if the policy was timely communicated to the patient or toan individual then authorized to make health-care decisions for thepatient. [Adapted from Unif. Health-Care Decisions Act § 7(e) comment(1993).]

§ 4735. Right to decline to provide ineffective care

4735. A health care provider or health care institution maydecline to comply with an individual health care instruction orhealth care decision that requires medically ineffective health


care or health care contrary to generally accepted health carestandards applicable to the health care provider or institution.

Comment. Section 4735 is drawn from Section 7(f) of the UniformHealth-Care Decisions Act (1993). This section is a special application ofthe general rule in Section 4654.

See also Sections 4615 (“health care” defined), 4619 (“health careinstitution” defined), 4621 (“health care provider” defined), 4623(“individual health care instruction” defined), 4625 (“patient” defined).

Background from Uniform Act. Section 7(f) [Prob. Code § 4734(b)]further authorizes a health-care provider or institution to decline tocomply with an instruction or decision that requires the provision of carewhich would be medically ineffective or contrary to generally acceptedhealth-care standards applicable to the provider or institution. “Medicallyineffective health care,” as used in this section, means treatment whichwould not offer the patient any significant benefit. [Adapted from Unif.Health-Care Decisions Act § 7(f) comment (1993).]

§ 4736. Duty of declining health care provider or institution

4736. A health care provider or health care institution thatdeclines to comply with an individual health care instructionor health care decision shall do all of the following:

(a) Promptly so inform the patient, if possible, and anyperson then authorized to make health care decisions for thepatient.

(b) Unless the patient or person then authorized to makehealth care decisions for the patient refuses assistance,immediately make all reasonable efforts to assist in thetransfer of the patient to another health care provider orinstitution that is willing to comply with the instruction ordecision.

(c) Provide continuing care to the patient until a transfer canbe accomplished or until it appears that a transfer cannot beaccomplished. In all cases, appropriate pain relief and otherpalliative care shall be continued.

Comment. Section 4736 is drawn in part from Section 7(g) of theUniform Health-Care Decisions Act (1993). This section applies tosituations where the health care provider or institution declines to complyunder Section 4734 or 4735. This section continues the duty to transfer


provided in former Health and Safety Code Sections 7187.5 (2dsentence) and 7190 (Natural Death Act). Nothing in this section requiresadministration of ineffective care. See Sections 4654, 4735.

See also Sections 4617 (“health care decision” defined), 4619 (“healthcare institution” defined), 4621 (“health care provider” defined), 4623(“individual health care instruction” defined), 4625 (“patient” defined).

Background from Uniform Act. Section 7(g) requires a health-careprovider or institution that declines to comply with an individualinstruction or health-care decision to promptly communicate the refusalto the patient, if possible, and to any person then authorized to makehealth-care decisions for the patient. The provider or institution also mustprovide continuing care to the patient until a transfer can be effected. Inaddition, unless the patient or person then authorized to make health-caredecisions for the patient refuses assistance, the health-care provider orinstitution must immediately make all reasonable efforts to assist in thetransfer of the patient to another health-care provider or institution that iswilling to comply with the instruction or decision. [Adapted from Unif.Health-Care Decisions Act § 7(g) comment (1993).]

CHAPTER 6. IMMUNITIES AND LIABILITIES

§ 4740. Immunities of health care provider and institution

4740. A health care provider or health care institution actingin good faith and in accordance with generally acceptedhealth care standards applicable to the health care provider orinstitution is not subject to civil or criminal liability or todiscipline for unprofessional conduct for any actions incompliance with this division, including, but not limited to,any of the following conduct:

(a) Complying with a health care decision of a personapparently having authority to make a health care decision fora patient, including a decision to withhold or withdraw healthcare.

(b) Declining to comply with a health care decision of aperson based on a belief that the person then lacked authority.

(c) Complying with an advance health care directive andassuming that the directive was valid when made and has notbeen revoked or terminated.


(d) Declining to comply with an individual health careinstruction or health care decision, in accordance withSections 4734 to 4736, inclusive.

Comment. Section 4740 is drawn in part from Section 9(a) of theUniform Health-Care Decisions Act (1993) and supersedes formerSections 4727(f) and 4750 (durable power of attorney for health care).This section also supersedes former Health and Safety Code Sections1418.8(k) (medical interventions in nursing homes) and 7190.5 (NaturalDeath Act).The major categories of actions listed in subdivisions (a)-(d)are given as examples and not by way of limitation on the general rulestated in the introductory paragraph. Hence, the protections of thissection apply to selection of a surrogate under Section 4712. Thisimmunity also applies where health care decisions are approved by asurrogate committee. See Section 4725 (general surrogate rulesapplicable to surrogate committee).

The good faith standard of former law is continued in this section. Likeformer law, this section protects the health care provider who acts ingood faith reliance on a health care decision made by an agent pursuantto this division. The reference to acting in accordance with generallyaccepted health care standards makes clear that a health care provider isnot protected from liability for malpractice. The specific qualificationsbuilt into the rules provided in former Section 4750(a) are superseded bythe good faith rule in this section and by the affirmative requirements ofother provisions. See, e. g., Sections 4683(a) (scope of agent’s authority)(compare to second part of introductory language of former Section4750(a)), 4684 (standard governing agent’s health care decisions)(compare to former Section 4750(a)(1)-(2)). See also Section 4733 (dutyof health care provider or institution to comply with health careinstructions and decisions), 4734 (health care provider’s or institution’sright to decline), 4736 (duty of declining health care provider orinstitution).

See also Sections 4605 (“advance health care directive” defined), 4617(“health care decision” defined), 4619 (“health care institution” defined),4621 (“health care provider” defined), 4625 (“patient” defined).

Background from Uniform Act. Section 9 [Prob. Code §§ 4740-4741] grants broad protection from liability for actions taken in goodfaith. Section 9(a) permits a health-care provider or institution to complywith a health-care decision made by a person appearing to have authorityto make health-care decisions for a patient; to decline to comply with ahealth-care decision made by a person believed to be without authority;and to assume the validity of and to comply with an advance health-caredirective. Absent bad faith or actions taken that are not in accord with


generally accepted health-care standards, a health-care provider orinstitution has no duty to investigate a claim of authority or the validityof an advance health-care directive. [Adapted from Unif. Health-CareDecisions Act § 9(a) comment (1993).]

§ 4741. Immunities of agent and surrogate

4741. A person acting as agent or surrogate under this partis not subject to civil or criminal liability or to discipline forunprofessional conduct for health care decisions made ingood faith.

Comment. Section 4741 is drawn from Section 9(b) of the UniformHealth-Care Decisions Act (1993). This immunity also applies wherehealth care decisions are approved by a surrogate committee. See Section4725 (general surrogate rules applicable to surrogate committee).

See also Sections 4607 (“agent” defined), 4617 (“health care decision”defined), 4643 (“surrogate” defined).

Background from Uniform Act. Section 9(b) protects agents andsurrogates acting in good faith from liability for making a health-caredecision for a patient. Also protected from liability are individuals whomistakenly but in good faith believe they have the authority to make ahealth-care decision for a patient. For example, an individual who hasbeen designated as agent in a power of attorney for health care mightassume authority unaware that the power has been revoked. Or a familymember might assume authority to act as surrogate unaware that a familymember having a higher priority was reasonably available and authorizedto act. [Adapted from Unif. Health-Care Decisions Act § 9(b) comment(1993).]

§ 4742. Statutory damages

4742. (a) A health care provider or health care institutionthat intentionally violates this part is subject to liability to theaggrieved individual for damages of two thousand fivehundred dollars ($2,500) or actual damages resulting from theviolation, whichever is greater, plus reasonable attorney’sfees.

(b) A person who intentionally falsifies, forges, conceals,defaces, or obliterates an individual’s advance health caredirective or a revocation of an advance health care directive


without the individual’s consent, or who coerces orfraudulently induces an individual to give, revoke, or not togive an advance health care directive, is subject to liability tothat individual for damages of ten thousand dollars ($10,000)or actual damages resulting from the action, whichever isgreater, plus reasonable attorney’s fees.

(c) The damages provided in this section are cumulative andnot exclusive of any other remedies provided by law.

Comment. Subdivisions (a) and (b) of Section 4742 are drawn fromSection 10 of the Uniform Health-Care Decisions Act (1993) andsupersede former Health and Safety Code Section 7191(a)-(b) (NaturalDeath Act).

Subdivision (c) continues the rule of former Health and Safety CodeSection 7191(g) (Natural Death Act) and is consistent with the uniformact. See Unif. Health-Care Decisions Act § 10 comment (1993).

See also Sections 4605 (“advance health care directive” defined), 4619(“health care institution” defined), 4621 (“health care provider” defined).

Background from Uniform Act. Conduct which intentionally violatesthe Act and which interferes with an individual’s autonomy to makehealth-care decisions, either personally or through others as providedunder the Act, is subject to civil damages rather than criminal penaltiesout of a recognition that prosecutions are unlikely to occur. Thelegislature of an enacting state will have to determine the amount ofdamages which needs to be authorized in order to encourage the level ofpotential private enforcement actions necessary to effect compliance withthe obligations and responsibilities imposed by the Act. The damagesprovided by this section do not supersede but are in addition to remediesavailable under other law. [Adapted from Unif. Health-Care DecisionsAct § 10 comment (1993).]

§ 4743. Criminal penalties

4743. Any person who alters or forges a written advancehealth care directive of another, or willfully conceals orwithholds personal knowledge of a revocation of an advancedirective, with the intent to cause a withholding or withdrawalof health care necessary to keep the patient alive contrary tothe desires of the patient, and thereby directly causes healthcare necessary to keep the patient alive to be withheld or


withdrawn and the death of the patient thereby to be hastened,is subject to prosecution for unlawful homicide as provided inChapter 1 (commencing with Section 187) of Title 8 of Part 1of the Penal Code.

Comment. Section 4743 continues former Section 4726 withoutsubstantive change and supersedes former Health and Safety CodeSection 7191(c)-(d) (Natural Death Act). References to “principal” havebeen changed to “patient” to reflect the broader scope of this division,and some surplus language has been omitted. The former incorrect cross-reference to “Title 4” has been corrected.

See also Sections 4605 (“advance health care directive” defined), 4615(“health care” defined), 4625 (“patient” defined).

PAR T 3 . JUDIC IAL PR OC E E DINGS


§ 4750. Judicial intervention disfavored

4750. Subject to this division:(a) An advance health care directive is effective and

exercisable free of judicial intervention.(b) A health care decision made by an agent for a principal

is effective without judicial approval.(c) A health care decision made by a surrogate for a patient

is effective without judicial approval.(d) A health care decision made pursuant to Chapter 4

(commencing with Section 4720) is effective without judicialapproval.

Comment. This section makes clear that judicial involvement in healthcare decisionmaking is disfavored. See Section 4650(d) (legislativefindings). Subdivision (a) of Section 4750 continues former Section 4900to the extent it applied to powers of attorney for health care.

Subdivision (b) is drawn from Section 2(f) of the Uniform Health-CareDecisions Act (1993).

Subdivision (c) is drawn from Sections 2(f) and 5(g) of the UniformHealth-Care Decisions Act (1993).


Subdivision (d) is patterned after subdivisions (b) and (c) and isanalogous to former Health and Safety Code Section 1418.8(i) (medicalinterventions for resident of long-term care facility).

See also Sections 4605 (“advance health care directive” defined), 4607(“agent” defined), 4617 (“health care decision” defined), 4625 (“patient”defined), 4633 (“principal” defined), 4643 (“surrogate” defined).

§ 4751. Cumulative remedies

4751. The remedies provided in this part are cumulative andnot exclusive of any other remedies provided by law.

Comment. Section 4751 continues former Section 4901 to the extent itapplied to powers of attorney for health care.

§ 4752. Effect of provision in advance directive attempting to limitright to petition

4752. Except as provided in Section 4753, this part is notsubject to limitation in an advance health care directive.


See also Sections 4605 (“advance health care directive” defined), 4681(general rule on limitations provided in power of attorney).

§ 4753. Limitations on right to petition

4753. (a) Subject to subdivision (b), an advance health caredirective may expressly eliminate the authority of a personlisted in Section 4765 to petition the court for any one ormore of the purposes enumerated in Section 4766, if both ofthe following requirements are satisfied:

(1) The advance directive is executed by an individualhaving the advice of a lawyer authorized to practice law in thestate where the advance directive is executed.

(2) The individual’s lawyer signs a certificate stating insubstance:

“I am a lawyer authorized to practice law in the statewhere this advance health care directive was executed,and __________ (insert name) was my client at the timethis advance directive was executed. I have advised my


client concerning his or her rights in connection with thisadvance directive and the applicable law and theconsequences of signing or not signing this advancedirective, and my client, after being so advised, hasexecuted this advance directive.”

(b) An advance health care directive may not limit theauthority of the following persons to petition under this part:

(1) The conservator of the person, with respect to a petitionrelating to an advance directive, for a purpose specified insubdivision (b) or (d) of Section 4766.

(2) The agent, with respect to a petition relating to a powerof attorney for health care, for a purpose specified insubdivision (b) or (c) of Section 4766.

Comment. Section 4753 continues former Section 4903 to the extent itapplied to powers of attorney for health care. Subdivision (a) makes clearthat a power of attorney may limit the applicability of this part only if itis executed with the advice and approval of the principal’s counsel. Thislimitation is designed to ensure that the execution of a power of attorneythat restricts the remedies of this part is accomplished knowingly by theprincipal. The inclusion of a provision in the power of attorney makingthis part inapplicable does not affect the right to resort to any judicialremedies that may otherwise be available.

Subdivision (b) specifies the purposes for which a conservator of theperson or an agent may petition the court under this part with respect to apower of attorney for health care. The rights provided in these paragraphscannot be limited by a provision in an advance directive, but the advancedirective may restrict or eliminate the right of any other persons topetition the court under this part if the individual executing the advancedirective has the advice of legal counsel and the other requirements ofsubdivision (a) are met. See Section 4681 (effect of provision in power ofattorney attempting to limit right to petition).

Under subdivision (b)(1), despite a contrary provision in the advancedirective, the conservator of the person may obtain a determination ofwhether an advance directive is in effect or has terminated (Section4766(b)) or whether the authority of an agent or surrogate is terminated(Section 4766(d)). See also Section 4766 Comment.

Under subdivision (b)(2), despite a contrary provision in the power ofattorney, the agent may obtain a determination of whether the power ofattorney for health care is in effect or has terminated (Section 4766(b)),


or an order passing on the acts or proposed acts of the agent under thepower of attorney (Section 4766(c)).

See also Sections 4605 (“advance health care directive” defined), 4607(“agent” defined), 4613 (“conservator” defined), 4629 (“power ofattorney for health care” defined).

§ 4754. Jury trial

4754. There is no right to a jury trial in proceedings underthis division.

Comment. Section 4754 continues former Section 4904 to the extent itapplied to powers of attorney for health care. This section is consistentwith the rule applicable to other fiduciaries. See Sections 1452(guardianships and conservatorships), 4504 (powers of attorneygenerally), 7200 (decedents’ estates), 17006 (trusts).

§ 4755. Application of general procedural rules

4755. Except as otherwise provided in this division, thegeneral provisions in Division 3 (commencing with Section1000) apply to proceedings under this division.

Comment. Section 4755 continues former Section 4905 to the extent itapplied to powers of attorney for health care. Like Section 4505, thissection provides a cross-reference to the general procedural rules thatapply to this division. See, e.g., Sections 1003 (guardian ad litem), 1021(verification required), 1041 (clerk to set matters for hearing), 1046(hearing and orders), 1203 (order shortening time for notice), 1215-1216(service), 1260 (proof of service).

CHAPTER 2. JURISDICTION AND VENUE

§ 4760. Jurisdiction and authority of court or judge

4760. (a) The superior court has jurisdiction in proceedingsunder this division.

(b) The court in proceedings under this division is a court ofgeneral jurisdiction and the court, or a judge of the court, hasthe same power and authority with respect to the proceedingsas otherwise provided by law for a superior court, or a judgeof the superior court, including, but not limited to, the mattersauthorized by Section 128 of the Code of Civil Procedure.


Comment. Section 4760 continues former Section 4920 to the extent itapplied to powers of attorney for health care. Like Section 4520, thissection is comparable to Section 7050 governing the jurisdiction andauthority of the court in proceedings concerning administration ofdecedents’ estates. See Section 7050 Comment.

§ 4761. Basis of jurisdiction

4761. The court may exercise jurisdiction in proceedingsunder this division on any basis permitted by Section 410.10of the Code of Civil Procedure.

Comment. Section 4761 continues former Section 4921 to the extent itapplied to powers of attorney for health care. Like Section 4521, thissection is comparable to Section 17004 (jurisdiction under Trust Law).This section recognizes that the court, in proceedings relating to powersof attorney under this division, may exercise jurisdiction on any basisthat is not inconsistent with the California or United States Constitutions,as provided in Code of Civil Procedure Section 410.10. See generallyJudicial Council Comment to Code Civ. Proc. § 410.10; Prob. Code §17004 Comment (basis of jurisdiction under Trust Law).

§ 4762. Jurisdiction over agent or surrogate

4762. Without limiting Section 4761, a person who acts asan agent under a power of attorney for health care or as asurrogate under this division is subject to personal jurisdictionin this state with respect to matters relating to acts andtransactions of the agent or surrogate performed in this stateor affecting a patient in this state.

Comment. Section 4762 continues former Section 4922 to the extent itapplied to powers of attorney for health care, and extends its principles tocover surrogates. Like Section 4522, this section is comparable toSections 3902(b) (jurisdiction over custodian under Uniform Transfers toMinors Act) and 17003(a) (jurisdiction over trustee). This section isintended to facilitate exercise of the court’s power under this part whenthe court’s jurisdiction is properly invoked. As recognized by theintroductory clause, constitutional limitations on assertion of jurisdictionapply to the exercise of jurisdiction under this section. Consequently,appropriate notice must be given to an agent or surrogate as a conditionof personal jurisdiction. Cf. Mullane v. Central Hanover Bank & TrustCo., 339 U.S. 306 (1950).


See also Sections 4607 (“agent” defined), 4625 (“patient” defined),4629 (“power of attorney for health care” defined), 4643 (“surrogate”defined).

§ 4763. Venue

4763. The proper county for commencement of aproceeding under this division shall be determined in thefollowing order of priority:

(a) The county in which the patient resides.(b) The county in which the agent or surrogate resides.(c) Any other county that is in the patient’s best interest.Comment. Section 4763 continues former Section 4923 to the extent it

applied to powers of attorney for health care.See also Sections 4607 (“agent” defined), 4625 (“patient” defined),

4643 (“surrogate” defined).

CHAPTER 3. PETITIONS, ORDERS, APPEALS

§ 4765. Petitioners

4765. Subject to Section 4753, a petition may be filed underthis part by any of the following persons:

(a) The patient.(b) The patient’s spouse, unless legally separated.(c) A relative of the patient.(d) The patient’s agent or surrogate, including a member of

a surrogate committee.(e) The conservator of the person of the patient.(f) The court investigator, described in Section 1454, of the

county where the patient resides.(g) The public guardian of the county where the patient

resides.(h) The supervising health care provider or health care

institution involved with the patient’s care.(i) Any other interested person or friend of the patient.Comment. Section 4765 continues former Section 4940 to the extent it

applied to powers of attorney for health care, with some omissions and


clarifications appropriate for the scope of this division. The purposes forwhich a person may file a petition under this part are limited by otherrules. See Sections 4752 (effect of provision in advance directiveattempting to limit right to petition), 4753 (limitations on right topetition), 4766 (petition with respect to advance directive). See alsoSection 4751 (other remedies not affected).

See also Sections 4607 (“agent” defined), 4613 (“conservator”defined), 4619 (“health care institution” defined), 4625 (“patient”defined), 4641 (“supervising health care provider” defined), 4643(“surrogate” defined), 4720-4726 (surrogate committees).

§ 4766. Purposes of petition

4766. A petition may be filed under this part for any one ormore of the following purposes:

(a) Determining whether or not the patient has capacity tomake health care decisions.

(b) Determining whether an advance health care directive isin effect or has terminated.

(c) Determining whether the acts or proposed acts of anagent or surrogate are consistent with the patient’s desires asexpressed in an advance health care directive or otherwisemade known to the court or, where the patient’s desires areunknown or unclear, whether the acts or proposed acts of theagent or surrogate are in the patient’s best interest.

(d) Declaring that the authority of an agent or surrogate isterminated, upon a determination by the court that the agentor surrogate has made a health care decision for the patientthat authorized anything illegal or upon a determination bythe court of both of the following:

(1) The agent or surrogate has violated, has failed toperform, or is unfit to perform, the duty under an advancehealth care directive to act consistent with the patient’sdesires or, where the patient’s desires are unknown orunclear, is acting (by action or inaction) in a manner that isclearly contrary to the patient’s best interest.


(2) At the time of the determination by the court, the patientlacks the capacity to execute or to revoke an advance healthcare directive or disqualify a surrogate.

(e) For the purposes of this section, “surrogate” includes asurrogate committee under Chapter 4 (commencing withSection 4720) of Part 2.

Comment. Section 4766 continues the substance of former Section4942 to the extent it applied to powers of attorney for health care, andadds language relating to advance directives and surrogates forconsistency with the scope of this division.

A determination of capacity under subdivision (a) is subject to the DueProcess in Competency Determinations Act. See Sections 810-813.

Under subdivision (c), the patient’s desires as expressed in the powerof attorney for health care, individual health care instructions, orotherwise made known to the court provide the standard for judging theacts of the agent or surrogate. See Section 4714 (standard governingsurrogate’s health care decisions). Where it is not possible to use astandard based on the patient’s desires because they are not stated in anadvance directive or otherwise known or are unclear, subdivision (c)provides that the “patient’s best interest” standard be used.

Subdivision (d) permits the court to terminate health caredecisionmaking authority where an agent or surrogate is not complyingwith the duty to carry out the patient’s desires or act in the patient’s bestinterest. See Section 4714 (standard governing surrogate’s health caredecisions). Subdivision (d) permits termination of authority under anadvance health care directive not only where an agent, for example, isacting illegally or failing to perform the duties under a power of attorneyor is acting contrary to the known desires of the principal, but also wherethe desires of the principal are unknown or unclear and the agent isacting in a manner that is clearly contrary to the patient’s best interest.The patient’s desires may become unclear as a result of developments inmedical treatment techniques that have occurred since the patient’sdesires were expressed, such developments having changed the nature orconsequences of the treatment.

This section also applies to surrogate committees under Sections 4720-4726. Thus, under subdivision (d), the action (or nonaction) of asurrogate committee may be reviewed by the court. For thedecisionmaking standards applicable to surrogate committees, seeSection 4723. See also Section 4725 (general surrogate rules applicableto surrogate committee).


An advance health care directive may limit the authority to petitionunder this part. See Sections 4752 (effect of provision in advancedirective attempting to limit right to petition), 4753 (limitations on rightto petition).

See also Sections 4605 (“advance health care directive” defined), 4607(“agent” defined), 4609 (“capacity” defined), 4613 (“conservator”defined), 4629 (“power of attorney for health care” defined), 4633(“principal” defined), 4643 (“surrogate” defined).

§ 4767. Commencement of proceeding

4767. A proceeding under this part is commenced by filinga petition stating facts showing that the petition is authorizedunder this part, the grounds of the petition, and, if known tothe petitioner, the terms of any advance health care directivein question.



§ 4768. Dismissal of petition

4768. The court may dismiss a petition if it appears that theproceeding is not reasonably necessary for the protection ofthe interests of the patient and shall stay or dismiss theproceeding in whole or in part when required by Section410.30 of the Code of Civil Procedure.

Comment. Section 4768 is similar to Section 4944 in the Power ofAttorney Law. Under this section, the court has authority to stay ordismiss a proceeding in this state if, in the interest of substantial justice,the proceeding should be heard in a forum outside this state. See CodeCiv. Proc. § 410.30.

See also Section 4625 (“patient” defined).

§ 4769. Notice of hearing

4769. (a) Subject to subdivision (b), at least 15 days beforethe time set for hearing, the petitioner shall serve notice of thetime and place of the hearing, together with a copy of thepetition, on the following:

(1) The agent or surrogate, if not the petitioner.


(2) The patient, if not the petitioner.(b) In the case of a petition to compel a third person to

honor the authority of an agent or surrogate, notice of the timeand place of the hearing, together with a copy of the petition,shall be served on the third person in the manner provided inChapter 4 (commencing with Section 413.10) of Title 5 ofPart 2 of the Code of Civil Procedure.

Comment. Section 4769 continues former Section 4945 to the extent itapplied to powers of attorney for health care and extends its principles toapply to surrogates. Subdivision (b) is generalized from former Section4945(b) applicable to property powers of attorney.

See also Sections 4607 (“agent” defined), 4625 (“patient” defined),4633 (“principal” defined), 4643 (“surrogate” defined).

§ 4770. Temporary health care order

4770. The court in its discretion, on a showing of goodcause, may issue a temporary order prescribing the health careof the patient until the disposition of the petition filed underSection 4766. If a power of attorney for health care is ineffect and a conservator (including a temporary conservator)of the person is appointed for the principal, the court thatappoints the conservator in its discretion, on a showing ofgood cause, may issue a temporary order prescribing thehealth care of the principal, the order to continue in effect forthe period ordered by the court but in no case longer than theperiod necessary to permit the filing and determination of apetition filed under Section 4766.

Comment. Section 4770 continues former Section 4946 to the extent itapplied to powers of attorney for health care. This section is intended tomake clear that the court has authority to provide, for example, for thecontinuance of treatment necessary to keep the patient alive pending thecourt’s action on the petition. See also Section 1046 (court authority tomake appropriate orders).

See also Sections 4605 (“advance health care directive” defined), 4613(“conservator” defined), 4615 (“health care” defined), 4625 (“patient”defined), 4633 (“principal” defined).


§ 4771. Award of attorney’s fees

4771. In a proceeding under this part commenced by thefiling of a petition by a person other than the agent orsurrogate, the court may in its discretion award reasonableattorney’s fees to one of the following:

(a) The agent or surrogate, if the court determines that theproceeding was commenced without any reasonable cause.

(b) The person commencing the proceeding, if the courtdetermines that the agent or surrogate has clearly violated theduties under the advance health care directive.

Comment. Section 4771 continues part of former Section 4947 to theextent it applied to powers of attorney for health care.

See also Sections 4605 (“advance health care directive” defined), 4607(“agent” defined), 4633 (“principal” defined), 4643 (“surrogate”defined).

PAR T 4 . R E QUE ST T O FOR GOR E SUSC IT AT IVE M E ASUR E S

§ 4780. Request to forgo resuscitative measures

4780. (a) As used in this part:(1) “Request to forgo resuscitative measures” means a

written document, signed by (A) an individual, or a legallyrecognized surrogate health care decisionmaker, and (B) aphysician, that directs a health care provider to forgoresuscitative measures for the individual.

(2) “Request to forgo resuscitative measures” includes aprehospital “do not resuscitate” form as developed by theEmergency Medical Services Authority or other substantiallysimilar form.

(b) A request to forgo resuscitative measures may also beevidenced by a medallion engraved with the words “do notresuscitate” or the letters “DNR,” a patient identificationnumber, and a 24-hour toll-free telephone number, issued by


a person pursuant to an agreement with the EmergencyMedical Services Authority.

Comment. Section 4780 continues former Section 4753(b) withoutsubstantive change. The phrase “for the individual” has been added at theend of subdivision (a)(1) for clarity. The former reference to “physicianand surgeon” has been changed to “physician” for clarity. See Section4627 (“physician” defined). For rules governing “legally recognizedsurrogate health care decisionmakers,” see Part 2 (commencing withSection 4670) (Uniform Health Care Decisions Act).

See also Section 4781 (“health care provider” defined), 4625 (“patient”defined).

§ 4781. Health care provider

4781. As used in this part, “health care provider” includes,but is not limited to, the following:

(a) Persons described in Section 4621.(b) Emergency response employees, including, but not

limited to, firefighters, law enforcement officers, emergencymedical technicians I and II, paramedics, and employees andvolunteer members of legally organized and recognizedvolunteer organizations, who are trained in accordance withstandards adopted as regulations by the Emergency MedicalServices Authority pursuant to Sections 1797.170, 1797.171,1797.172, 1797.182, and 1797.183 of the Health and SafetyCode to respond to medical emergencies in the course ofperforming their volunteer or employee duties with theorganization.

Comment. Section 4781 continues former Section 4753(g) withoutsubstantive change.

§ 4782. Immunity for honoring request to forgo resuscitativemeasures

4782. A health care provider who honors a request to forgoresuscitative measures is not subject to criminal prosecution,civil liability, discipline for unprofessional conduct,administrative sanction, or any other sanction, as a result ofhis or her reliance on the request, if the health care provider


(a) believes in good faith that the action or decision isconsistent with this part, and (b) has no knowledge that theaction or decision would be inconsistent with a health caredecision that the individual signing the request would havemade on his or her own behalf under like circumstances.

Comment. Section 4782 continues former Section 4753(a) withoutsubstantive change.

See also Sections 4617 (“health care decision” defined), 4780(“request to forgo resuscitative measures” defined), 4781 (“health careprovider” defined).

§ 4783. Forms for requests to forgo resuscitative measures

4783. (a) Forms for requests to forgo resuscitative measuresprinted after January 1, 1995, shall contain the following:

“By signing this form, the surrogate acknowledges thatthis request to forgo resuscitative measures is consistentwith the known desires of, and with the best interest of,the individual who is the subject of the form.”

(b) A substantially similar printed form is valid andenforceable if all of the following conditions are met:

(1) The form is signed by the individual, or the individual’slegally recognized surrogate health care decisionmaker, and aphysician.

(2) The form directs health care providers to forgoresuscitative measures.

(3) The form contains all other information required by thissection.

Comment. Section 4783 continues former Section 4753(c)-(d) withoutsubstantive change. For rules governing “legally recognized surrogatehealth care decisionmakers,” see Part 2 (commencing with Section 4670)(Uniform Health Care Decisions Act).

See also Sections 4627 (“physician” defined), 4780 (“request to forgoresuscitative measures” defined), 4781 (“health care provider” defined).


§ 4784. Presumption of validity

4784. In the absence of knowledge to the contrary, a healthcare provider may presume that a request to forgoresuscitative measures is valid and unrevoked.

Comment. Section 4784 continues former Section 4753(e) withoutchange.

See also Sections 4780 (“request to forgo resuscitative measures”defined), 4781 (“health care provider” defined).

§ 4785. Application of part

4785. This part applies regardless of whether the individualexecuting a request to forgo resuscitative measures is withinor outside a hospital or other health care institution.

Comment. Section 4785 continues former Section 4753(f) withoutsubstantive change.

See also Section 4619 (“health care institution” defined), 4780(“request to forgo resuscitative measures” defined).

§ 4786. Relation to other law

4786. This part does not repeal or narrow laws relating tohealth care decisionmaking.

Comment. Section 4786 restates former Section 4753(h) withoutsubstantive change. The references to the Durable Power of Attorney forHealth Care and the Natural Death Act have been omitted asunnecessary. The reference to “current” laws had been eliminated asobsolete.

PAR T 5 . ADVANC E HE AL T H C AR EDIR E C T IVE R E GIST R Y

§ 4800. Registry system established by Secretary of State

4800. (a) The Secretary of State shall establish a registrysystem through which a person who has executed a writtenadvance health care directive may register in a centralinformation center, information regarding the advancedirective, making that information available upon request to


any health care provider, the public guardian, or other personauthorized by the registrant.

(b) Information that may be received and released is limitedto the registrant’s name, social security or driver’s license orother individual identifying number established by law, ifany, address, date and place of birth, the intended place ofdeposit or safekeeping of the written advance health caredirective, and the name and telephone number of the agentand any alternative agent.

(c) The Secretary of State, at the request of the registrant,may transmit the information received regarding the writtenadvance health care directive to the registry system of anotherjurisdiction as identified by the registrant.

(d) The Secretary of State may charge a fee to eachregistrant in an amount such that, when all fees charged toregistrants are aggregated, the aggregated fees do not exceedthe actual cost of establishing and maintaining the registry.

Comment. Section 4800 continues former Section 4800 withoutsubstantive change as applied to powers of attorney for health care, andgeneralizes the former provision to apply to all written advance healthcare directives. Hence, in addition to powers of attorney for health care,this section as revised permits registration of individual health careinstructions.

See Section 4605 (“advance health care directive” defined), 4607(“agent” defined), 4621 (“health care provider” defined).

§ 4801. Identity and fees

4801. The Secretary of State shall establish procedures toverify the identities of health care providers, the publicguardian, and other authorized persons requesting informationpursuant to Section 4800. No fee shall be charged to anyhealth care provider, the public guardian, or other authorizedperson requesting information pursuant to Section 4800.

Comment. Section 4801 continues former Section 4801 withoutchange.

See also Section 4621 (“health care provider” defined).


§ 4802. Notice

4802. The Secretary of State shall establish procedures toadvise each registrant of the following:

(a) A health care provider may not honor a written advancehealth care directive until it receives a copy from theregistrant.

(b) Each registrant must notify the registry upon revocationof the advance directive.

(c) Each registrant must reregister upon execution of asubsequent advance directive.

Comment. Section 4802 continues former Section 4802 withoutsubstantive change as applied to powers of attorney for health care, andgeneralizes it to apply to all written advance health care directives.Hence, in addition to powers of attorney for health care, this section asrevised permits registration of individual health care instructions.

See also Section 4605 (“advance health care directive” defined), 4621(“health care provider” defined).

§ 4803. Effect of failure to register

4803. Failure to register with the Secretary of State does notaffect the validity of any advance health care directive.

Comment. Section 4803 continues former Section 4804 withoutsubstantive change as applied to powers of attorney for health care, andgeneralizes it to apply to all written advance health care directivesinstead of the more limited class of durable powers of attorney for healthcare.


§ 4804. Effect of registration on revocation and validity

4804. Registration with the Secretary of State does notaffect the ability of the registrant to revoke the registrant’sadvance health care directive or a later executed advancedirective, nor does registration raise any presumption ofvalidity or superiority among any competing advancedirectives or revocations.

Comment. Section 4804 continues former Section 4805 withoutsubstantive change as applied to powers of attorney for health care, and


generalizes it to apply to all written advance health care directives.Hence, in addition to powers of attorney for health care, this section asrevised permits registration of individual health care instructions.


§ 4805. Effect on health care provider

4805. Nothing in this chapter shall be construed to require ahealth care provider to request from the registry informationabout whether a patient has executed an advance health caredirective. Nothing in this chapter shall be construed to affectthe duty of a health care provider to provide information to apatient regarding advance health care directives pursuant toany provision of federal law.

Comment. Section 4805 continues former Section 4806 withoutsubstantive change as applied to powers of attorney for health care, andgeneralizes it to apply to all written advance health care directives.Hence, in addition to powers of attorney for health care, this section asrevised permits registration of individual health care instructions.

See also Section 4605 (“advance health care directive” defined), 4621(“health care provider” defined), 4625 (“patient” defined).

1999] 149

CONFORMING REVISIONS AND REPEALS

ContentsGOVERNMENT CODE ................................... 155

§ 8205 (technical amendment). Duties of notary public ........... 155

HEALTH AND SAFETY CODE .............................. 156§ 1418.8 (repealed). Consent for incapacitated patient in skilled

nursing facility or intermediate care facility .............. 156§ 1569.156 (amended). Information and education on advance

directives in residential care facility ................... 161§ 1584 (amended). Secured perimeter in adult day health care center .. 162§ 1599.73 (amended). Statement of patients’ right to confidential

treatment ..................................... 164§ 7100 (amended). Right to control disposition of remains ......... 165§ 7151 (amended). Who may make or revoke anatomical gift ....... 168§§ 7185-7194.5 (repealed). Natural Death Act ................. 170

§ 7185 (repealed). Short title ......................... 170§ 7185.5 (repealed). Legislative findings and declarations ...... 170§ 7186 (repealed). Definitions ........................ 170§ 7186.5 (repealed). Declaration governing life-sustaining

treatment .................................. 171§ 7187 (repealed). Skilled nursing facility or long-term health

care facility ................................ 171§ 7187.5 (repealed). When declaration becomes operative ...... 171§ 7188 (repealed). Revocation ........................ 172§ 7189 (repealed). Determination of terminal or permanent

unconscious condition ......................... 172§ 7189.5 (repealed). Patient’s right to make decisions concerning

life-sustaining treatment ........................ 172§ 7190 (repealed). Duties of health care provider unwilling to

comply with chapter .......................... 172§ 7190.5 (repealed). Liability and professional discipline ....... 172§ 7191 (repealed). Crimes ........................... 172§ 7191.5 (repealed). Effect of death on life insurance or annuity .. 173§ 7192 (repealed). Presumption of validity of declaration....... 173§ 7192.5 (repealed). Validity of declarations executed in

another state................................ 173§ 7193 (repealed). Effect of durable power of attorney for

health care ................................. 173§ 7193.5 (repealed). Instruments to be given effect ........... 173


Health and Safety Code continued

§ 7194 (repealed). Severability clause ................... 174§ 7194.5 (repealed). Conformity with Uniform Rights of the

Terminally Ill Act ............................ 174§ 24179.5 (amended). Application of chapter to withholding or

withdrawal of life-sustaining procedures ................ 174

PROBATE CODE ....................................... 175§ 811 (amended). Deficits in mental functions ................. 175§ 1302 (amended). Grounds for appeal under Power of Attorney

Law ........................................ 177§ 1302.5 (added). Grounds for appeal under Health Care Decisions

Law ........................................ 177§ 2105 (amended). Joint guardians or conservators .............. 178§ 2355 (amended). Health care where conservatee lacks capacity .... 180§ 2356 (amended). Limitations on application of chapter .......... 182§ 3200 (amended). Definitions ........................... 184§ 3201 (amended). Petition for court authorization .............. 185§ 3202 (unchanged). Jurisdiction and venue .................. 186§ 3203 (amended). Persons authorized to file petition ............ 187§ 3204 (amended). Contents of petition ..................... 187§ 3205 (unchanged). Appointment of legal counsel.............. 188§ 3206 (amended). Notice of hearing ....................... 189§ 3207 (amended). Submission for determination on medical

affidavits ..................................... 190§ 3208 (amended). Order authorizing treatment ................ 190§ 3208.5 (added). Effect of order determining that patient has

capacity...................................... 193§ 3209 (unchanged). Continuing jurisdiction of court ............ 194§ 3210 (amended). Procedure supplemental and alternative ........ 194§ 3211 (amended). Limitations on part ...................... 195§ 3212 (added). Choice of treatment by spiritual means ........... 195§ 3722 (technical amendment). Effect of dissolution, annulment, or

legal separation on power of attorney involving federalabsentees..................................... 196

§ 4050 (amended). Types of powers of attorney governed by thisdivision...................................... 196

§ 4100 (amended). Application of part ...................... 198§ 4121 (amended). Formalities for executing a power of attorney .... 198§ 4122 (amended). Requirements for witnesses ................ 199§ 4123 (amended). Permissible purposes..................... 199§ 4128 (amended). Warning statement in durable power of attorney... 201§ 4203 (amended). Successor attorneys-in-fact................. 203

1999] CONFORMING REVISIONS & REPEALS 151

Probate Code continued

§ 4206 (amended). Relation of attorney-in-fact to court-appointedfiduciary ..................................... 204

§ 4260 (amended). Limitation on article ..................... 205§ 4265 (amended). Excluded authority ...................... 205§§ 4500-4545 (added). Judicial proceedings concerning powers of

attorney...................................... 206§ 4500. Power of attorney freely exercisable ............... 206§ 4501. Cumulative remedies ......................... 206§ 4502. Effect of provision in power of attorney attempting to

limit right to petition .......................... 206§ 4503. Limitations on right to petition................... 206§ 4504. Jury trial ................................. 208§ 4505. Application of general procedural rules ............. 208§ 4520. Jurisdiction and authority of court or judge........... 208§ 4521. Basis of jurisdiction .......................... 209§ 4522. Jurisdiction over attorney-in-fact ................. 209§ 4523. Venue ................................... 209§ 4540. Petitioners ................................ 210§ 4541. Petition as to powers of attorney.................. 211§ 4542. Commencement of proceeding................... 213§ 4543. Dismissal of petition ......................... 213§ 4544. Notice of hearing............................ 214§ 4545. Award of attorney’s fees....................... 214

§§ 4600-4806 (repealed). Durable powers of attorney for health care .. 215§ 4600 (repealed). Application of definitions ............... 215§ 4603 (repealed). Community care facility................ 215§ 4606 (repealed). Durable power of attorney for health care .... 215§ 4609 (repealed). Health care ........................ 215§ 4612 (repealed). Health care decision .................. 215§ 4615 (repealed). Health care provider .................. 216§ 4618 (repealed). Residential care facility for the elderly ...... 216§ 4621 (repealed). Statutory form durable power of attorney for

health care ................................. 216§ 4650 (repealed). Application of chapter ................. 216§ 4651 (repealed). Form of durable power of attorney for health

care after January 1, 1995 ....................... 216§ 4652 (repealed). Other authority not affected ............. 216§ 4653 (repealed). Validity of durable power of attorney for

health care executed elsewhere ................... 216§ 4654 (repealed). Durable power of attorney for health care

subject to former 7-year limit .................... 217



§ 4700 (repealed). Requirements for durable power of attorneyfor health care .............................. 217

§ 4701 (repealed). Witnesses of durable power of attorney forhealth care ................................. 217

§ 4702 (repealed). Limitations on who may be attorney-in-fact ... 217§ 4703 (repealed). Printed form of durable power of attorney for

health care ................................. 217§ 4704 (repealed). Warnings not on printed form ............ 217§ 4720 (repealed). Attorney-in-fact’s authority to make health

care decisions............................... 217§ 4721 (repealed). Availability of medical information to

attorney-in-fact.............................. 218§ 4722 (repealed). Limitations on attorney-in-fact’s authority .... 218§ 4723 (repealed). Unauthorized acts and omissions .......... 218§ 4724 (repealed). Principal’s objections.................. 218§ 4725 (repealed). Restriction on execution of durable power of

attorney for health care as condition for admission,treatment, or insurance ......................... 218

§ 4726 (repealed). Alteration or forging, or concealment orwithholding knowledge of revocation of durable power ofattorney for health care......................... 218

§ 4727 (repealed). Revocation of durable power of attorney forhealth care ................................. 218

§ 4750 (repealed). Immunities of health care provider ......... 219§ 4751 (repealed). Convincing evidence of identity of principal .. 219§ 4752 (repealed). Presumption concerning power executed in

other jurisdiction............................. 219§ 4753 (repealed). Request to forgo resuscitative measures...... 219§ 4770 (repealed). Short title ......................... 219§ 4771 (repealed). Statutory form durable power of attorney for

health care ................................. 220§ 4772 (repealed). Warning or lawyer’s certificate ........... 220§ 4773 (repealed). Formal requirements .................. 220§ 4774 (repealed). Requirements for statutory form .......... 220§ 4775 (repealed). Use of forms valid under prior law ......... 220§ 4776 (repealed). Language conferring general authority ...... 220§ 4777 (repealed). Effect of documents executed by attorney-in-

fact...................................... 220§ 4778 (repealed). Termination of authority, alternate attorney-

in-fact .................................... 220§ 4779 (repealed). Use of other forms ................... 221§ 4800 (repealed). Registry system established by Secretary of

State ..................................... 221



§ 4801 (repealed). Identity and fees ..................... 221§ 4802 (repealed). Notice............................ 221§ 4804 (repealed). Effect of failure to register .............. 221§ 4805 (repealed). Effect of registration on revocation and

validity ................................... 221§ 4806 (repealed). Effect on health care provider ............ 221

§§ 4900-4947 (repealed). Judicial proceedings concerning powers ofattorney...................................... 221

§ 4900 (repealed). Power of attorney freely exercisable ........ 222§ 4901 (repealed). Cumulative remedies .................. 222§ 4902 (repealed). Effect of provision in power of attorney

limiting right to petition ........................ 222§ 4903 (repealed). Limitations on right to petition ........... 222§ 4904 (repealed). Jury trial .......................... 222§ 4905 (repealed). Application of general procedural rules ...... 222§ 4920 (repealed). Jurisdiction and authority of court or judge ... 222§ 4921 (repealed). Basis of jurisdiction................... 222§ 4922 (repealed). Jurisdiction over attorney-in-fact .......... 223§ 4923 (repealed). Venue............................ 223§ 4940 (repealed). Petitioners ......................... 223§ 4941 (repealed). Petition as to powers of attorney other than

for health care .............................. 223§ 4942 (repealed). Petition as to durable power of attorney for

health care ................................. 223§ 4943 (repealed). Commencement of proceeding ........... 223§ 4944 (repealed). Dismissal of petition .................. 223§ 4945 (repealed). Notice of hearing .................... 224§ 4946 (repealed). Temporary health care order ............. 224§ 4947 (repealed). Award of attorney’s fees ............... 224

WELFARE AND INSTITUTIONS CODE ........................ 224§ 14110.8 (amended). Admission to nursing facility ............. 224

UNCODIFIED ......................................... 226Uncodified. Deferred operative date........................ 226

REVISED PROBATE CODE COMMENTS ..................... 227§ 2 (revised comment). Continuation of existing law, construction of

provisions drawn from uniform acts ................... 227§ 4014 (revised comment). Attorney-in-fact .................. 229§ 4053 (revised comment). Recognition of durable powers of

attorney executed under law of another state.............. 229§ 4054 (revised comment). Application to existing powers of attorney

and pending proceedings .......................... 230


Revised Probate Code Comments continued

§ 4101 (revised comment). Priority of provisions of power ofattorney...................................... 230

§ 4121 (revised comment). Formalities for executing a power ofattorney...................................... 230

§ 4124 (revised comment). Requirements for durable power ofattorney...................................... 231

§ 4130 (revised comment). Inconsistent authority ............... 232§ 4152 (revised comment). Termination of attorney-in-fact’s

authority ..................................... 232§ 4200 (revised comment). Qualifications of attorney-in-fact ....... 233§ 4207 (revised comment). Resignation of attorney-in-fact......... 233§ 4234 (revised comment). Duty to keep principal informed and

follow instructions............................... 233§ 4235 (revised comment). Consultation and disclosure........... 233§ 4236 (revised comment). Duty to keep records and account,

availability of records to other persons ................. 234§ 4300 (revised comment). Third persons required to respect

attorney-in-fact’s authority ......................... 234§ 4301 (revised comment). Reliance by third person on general

authority ..................................... 235§ 4302 (revised comment). Identification of attorney-in-fact and

principal ..................................... 235§ 4303 (revised comment). Protection of third person relying in good

faith on power of attorney.......................... 235§ 4307 (revised comment). Certified copy of power of attorney...... 236§ 4401 (revised comment). Statutory form power of attorney ....... 236§ 4405 (revised comment). Springing statutory form power of

attorney...................................... 240§ 4407 (revised comment). General provisions applicable to statutory

form power of attorney............................ 240§ 4450 (revised comment). Construction of powers generally ....... 241

1999] 155

CONFORMING REVISIONS AND REPEALS

GOVERNMENT CODE

Gov’t Code § 8205 (technical amendment). Duties of notary public

SEC. ____. Section 8205 of the Government Code isamended to read:

8205. (a) It is the duty of a notary public, when requested:(1) To demand acceptance and payment of foreign and

inland bills of exchange, or promissory notes, to protest themfor nonacceptance and nonpayment, and, with regard only tothe nonacceptance or nonpayment of bills and notes, toexercise any other powers and duties that by the law ofnations and according to commercial usages, or by the laws ofany other state, government, or country, may be performed bynotaries.

(2) To take the acknowledgment or proof of advance healthcare directives, powers of attorney, mortgages, deeds, grants,transfers, and other instruments of writing executed by anyperson, and to give a certificate of that proof oracknowledgment, endorsed on or attached to the instrument.The certificate shall be signed by the notary public in thenotary public’s own handwriting. A notary public may notaccept any acknowledgment or proof of any instrument that isincomplete.

(3) To take depositions and affidavits, and administer oathsand affirmations, in all matters incident to the duties of theoffice, or to be used before any court, judge, officer, or board.Any deposition, affidavit, oath, or affirmation shall be signedby the notary public in the notary public’s own handwriting.

(4) To certify copies of powers of attorney under Section4307 of the Probate Code. The certification shall be signed bythe notary public in the notary public’s own handwriting.


(b) It shall further be the duty of a notary public, uponwritten request:

(1) To furnish to the Secretary of State certified copies ofthe notary’s journal.

(2) To respond within 30 days of receiving written requestssent by certified mail from the Secretary of State’s office forinformation relating to official acts performed by the notary.

Comment. Subdivision (a)(2) of Section 8205 is amended to recognizethat advance health care directives are treated separately by statute frompowers of attorney. See Prob. Code § 4600 et seq. (Health CareDecisions Law); 4673 (witnessing or notarization of advance health caredirective executed in skilled nursing facility).

HEALTH AND SAFETY CODE

Health & Safety Code § 1418.8 (repealed). Consent for incapacitatedpatient in skilled nursing facility or intermediate care facility

SEC. ____. Section 1418.8 of the Health and Safety Code isrepealed.

1418.8. (a) If the attending physician and surgeon of aresident in a skilled nursing facility or intermediate carefacility prescribes or orders a medical intervention thatrequires informed consent be obtained prior to administrationof the medical intervention, but is unable to obtain informedconsent because the physician and surgeon determines thatthe resident lacks capacity to make decisions concerning hisor her health care and that there is no person with legalauthority to make those decisions on behalf of the resident,the physician and surgeon shall inform the skilled nursingfacility or intermediate care facility.

(b) For purposes of subdivision (a), a resident lacks capacityto make a decision regarding his or her health care if theresident is unable to understand the nature and consequencesof the proposed medical intervention, including its risks andbenefits, or is unable to express a preference regarding theintervention. To make the determination regarding capacity,


the physician shall interview the patient, review the patient’smedical records, and consult with skilled nursing orintermediate care facility staff, as appropriate, and familymembers and friends of the resident, if any have beenidentified.

(c) For purposes of subdivision (a), a person with legalauthority to make medical treatment decisions on behalf of apatient is a person designated under a valid Durable Power ofAttorney for Health Care, a guardian, a conservator, or nextof kin. To determine the existence of a person with legalauthority, the physician shall interview the patient, review themedical records of the patient and consult with skilled nursingor intermediate care facility staff, as appropriate, and familymembers and friends of the resident, if any have beenidentified.

(d) The attending physician and the skilled nursing facilityor intermediate care facility may initiate a medicalintervention that requires informed consent pursuant tosubdivision (e) in accordance with acceptable standards ofpractice.

(e) Where a resident of a skilled nursing facility orintermediate care facility has been prescribed a medicalintervention by a physician and surgeon that requiresinformed consent and the physician has determined that theresident lacks capacity to make health care decisions andthere is no person with legal authority to make those decisionson behalf of the resident, the facility shall, except as providedin subdivision (h), conduct an interdisciplinary team reviewof the prescribed medical intervention prior to theadministration of the medical intervention. Theinterdisciplinary team shall oversee the care of the residentutilizing a team approach to assessment and care planning andshall include the resident’s attending physician, a registeredprofessional nurse with responsibility for the resident, other


appropriate staff in disciplines as determined by the resident’sneeds, and, where practicable, a patient representative, inaccordance with applicable federal and state requirements.The review shall include all of the following:

(1) A review of the physician’s assessment of the resident’scondition.

(2) The reason for the proposed use of the medicalintervention.

(3) A discussion of the desires of the patient, where known.To determine the desires of the resident, the interdisciplinaryteam shall interview the patient, review the patient’s medicalrecords and consult with family members or friends, if anyhave been identified.

(4) The type of medical intervention to be used in theresident’s care, including its probable frequency and duration.

(5) The probable impact on the resident’s condition, withand without the use of the medical intervention.

(6) Reasonable alternative medical interventions consideredor utilized and reasons for their discontinuance orinappropriateness.

(f) A patient representative may include a family member orfriend of the resident who is unable to take full responsibilityfor the health care decisions of the resident, but has agreed toserve on the interdisciplinary team, or other person authorizedby state or federal law.

(g) The interdisciplinary team shall periodically evaluate theuse of the prescribed medical intervention at least quarterly orupon a significant change in the resident’s medical condition.

(h) In case of an emergency, after obtaining a physician andsurgeon’s order as necessary, a skilled nursing or intermediatecare facility may administer a medical intervention whichrequires informed consent prior to the facility convening aninterdisciplinary team review. If the emergency results in theapplication of physical or chemical restraints, the


interdisciplinary team shall meet within one week of theemergency for an evaluation of the medical intervention.

(i) Physician and surgeons and skilled nursing facilities andintermediate care facilities shall not be required to obtain acourt order pursuant to Section 3201 of the Probate Codeprior to administering a medical intervention which requiresinformed consent if the requirements of this section are met.

(j) Nothing in this section shall in any way affect the rightof a resident of a skilled nursing facility or intermediate carefacility for whom medical intervention has been prescribed,ordered, or administered pursuant to this section to seekappropriate judicial relief to review the decision to providethe medical intervention.

(k) No physician or other health care provider, whose actionunder this section is in accordance with reasonable medicalstandards, is subject to administrative sanction if thephysician or health care provider believes in good faith thatthe action is consistent with this section and the desires of theresident, or if unknown, the best interests of the resident.

(l) The determinations required to be made pursuant tosubdivisions (a), (e), and (g), and the basis for thosedeterminations shall be documented in the patient’s medicalrecord and shall be made available to the patient’srepresentative for review.

Comment. Former Section 1418.8 is superseded by the procedure formaking health care decisions for patients without surrogates provided byProbate Code Sections 4720-4725. The new procedure is not limited toincapacitated persons in skilled nursing facilities or intermediate carefacilities. Parts of the new procedure were drawn from this section. SeeProb. Code §§ 4720-4725 Comments. The terminology varies, however.For example, the term “medical intervention” is superseded by “healthcare decision” as defined in Probate Code Section 4617.

The conditions for using the procedure in subdivision (a) are continuedin substance by Probate Code Section 4720 (application of surrogatecommittee chapter). Provisions relating to capacity and capacitydeterminations in subdivision (b) are superseded by Probate Code


Sections 4609 (“capacity” defined), 4657 (presumption of capacity), and4658 (determination of capacity and other medical conditions).

Subdivision (c) is superseded by Probate Code Section 4720(application of surrogate committee chapter). See also Prob. Code § 4712(selection of statutory surrogate).

Subdivision (d) is superseded by Probate Code Section 4721 (referralto surrogate committee by primary physician). See also Prob. Code §4654 (compliance with generally accepted health care standards).

The first sentence of subdivision (e) is superseded by Probate CodeSections 4720 (conditions for application of chapter) and 4721 (referralto surrogate committee). The interdisciplinary team is superseded by asurrogate committee. As to emergency care, see Prob. Code § 4651(b)(2).The second sentence is superseded by Probate Code Sections 4722(composition of surrogate committee) and 4724 (decisionmaking bysurrogate committee). The standards of review in the third sentence arecontinued and generalized in Probate Code Section 4723(a).

The part of subdivision (f) relating to family and friends is continuedand generalized in Probate Code Section 4722(b)(3) (composition ofsurrogate committee). The reference to persons authorized by state orfederal law is omitted as surplus, but such persons would be permissibleunder Probate Code Section 4722, which provides some flexibility incomposition of the surrogate committee.

Subdivision (g) is generalized in revised form in Probate Code Section4723(b) (periodic review).

Subdivision (h) is continued and generalized in Probate Code Section4726 (review of emergency care).

Subdivision (i) is superseded by Probate Code Section 4750(d)(judicial intervention disfavored), which continues the same policy.

Subdivision (j) is superseded by Probate Code Section 4765(permissible petitioners).

The first part of subdivision (k) is superseded by Probate Code Section4740 (immunities of health care provider and institution). The last part issuperseded by Probate Code Sections 4714 (standard governingsurrogate’s health care decisions), 4723(a)(3) (standards of review bysurrogate committee), and 4725 (general surrogate rules applicable tosurrogate committee).

Subdivision (l) is superseded by Probate Code Sections 4676 (right tohealth care information) and 4732 (duty of primary physician to recordrelevant information).


Health & Safety Code § 1569.156 (amended). Information andeducation on advance directives in residential care facility

SEC. ____. Section 1569.156 of the Health and Safety Codeis amended to read:

1569.156. (a) A residential care facility for the elderly shalldo all of the following:

(1) Not condition the provision of care or otherwisediscriminate based on whether or not an individual hasexecuted an advance directive, consistent with applicablelaws and regulations.

(2) Provide education to staff on issues concerning advancedirectives.

(3) Provide written information, upon admission, about theright to make decisions concerning medical care, includingthe right to accept or refuse medical or surgical treatment andthe right, under state law, to formulate advance directives.

(4) Provide written information about policies of the facilityregarding the implementation of the rights described inparagraph (3).

(b) For purposes of this section, “advance directive” meansinstructions relating to the provision of health care whenindividuals are unable to communicate their wishes regardingmedical treatment. The “advance directive” may be a writtendocument authorizing an agent or surrogate to make decisionson an individual’s behalf, including a durable power ofattorney for health care, as defined in Section 4700 of theProbate Code, a written statement such as a declaration, asdefined in Section 7186.5, an “advance health caredirective,” as defined in Section 4605 of the Probate Code, orsome other form of instruction recognized under state lawspecifically addressing the provision of health care.

Comment. Subdivision (b) of Section 1569.156 is amended forconformity with the Health Care Decisions Law, Probate Code Section4600 et seq. “Advance health care directives” under Probate CodeSection 4605 is a broad term that includes powers of attorney for health


care (defined in Probate Code Section 4629) and individual health careinstructions (defined in Probate Code Section 4623). The reference to“some other form” at the end of subdivision (b) is retained out of anabundance of caution. All recognized forms of advance health caredirectives for adults who lack decisionmaking capacity are intended to beencompassed by the Health Care Decisions Law. See, e.g., Prob. Code §§4651 (scope of law), 4665 (application to existing advance directives).Specifically, declarations under former Section 7186.5 of the NaturalDeath Act are governed by the new law and are included in the term“advance health care directive.” See former Health & Safety Code §§7185 & 7186.5 Comments; Prob. Code §§ 4623 & Comment, 4665.

Health & Safety Code § 1584 (amended). Secured perimeter in adultday health care center

SEC. ____. Section 1584 of the Health and Safety Code isamended to read:

1584. (a) An adult day health care center that provides carefor adults with Alzheimer’s disease and other dementias mayinstall for the safety and security of those persons securedperimeter fences or egress control devices of the time-delaytype on exit doors.

(b) As used in this section, “egress control device” means adevice that precludes the use of exits for a predeterminedperiod of time. These devices shall not delay any participant’sdeparture from the center for longer than 30 seconds. Centerstaff may attempt to redirect a participant who attempts toleave the center.

(c) Adult day health care centers installing security devicespursuant to this section shall meet all of the followingrequirements:

(1) The center shall be subject to all fire and building codes,regulations, and standards applicable to adult day health carecenters using egress control devices or secured perimeterfences and shall receive a fire clearance from the fireauthority having jurisdiction for the egress control devices orsecured perimeter fences.


(2) The center shall maintain documentation of diagnosis bya physician of a participant’s Alzheimer’s disease or otherdementia.

(3) The center shall provide staff training regarding the useand operation of the egress control devices utilized by thecenter, the protection of participants’ personal rights,wandering behavior and acceptable methods of redirection,and emergency evacuation procedures for persons withdementia.

(4) All admissions to the center shall continue to bevoluntary on the part of the participant or with consent of theparticipant’s conservator, an agent of the participant’s with adurable participant under a power of attorney health care, orother person who has the authority to act on behalf of theparticipant. Persons who have the authority to act on behalf ofthe participant include the participant’s spouse or closestavailable relative.

(5) The center shall inform all participants, conservators,agents, and persons who have the authority to act on behalf ofparticipants of the use of security devices. The center shallmaintain a signed participation agreement indicating the useof the devices and the consent of the participant, conservator,agent, or person who has the authority to act on behalf of theparticipant. The center shall retain the original statement inthe participant’s files at the center.

(6) The use of egress control devices or secured perimeterfences shall not substitute for adequate staff. Staffing ratiosshall at all times meet the requirements of applicableregulations.

(7) Emergency fire and earthquake drills shall be conductedat least once every three months, or more frequently asrequired by a county or city fire department or local fireprevention district. The drills shall include all center staff andvolunteers providing participant care and supervision. This


requirement does not preclude drills with participants asrequired by regulations.

(8) The center shall develop a plan of operation approvedby the department that includes a description of how thecenter is to be equipped with egress control devices orsecured perimeter fences that are consistent with regulationsadopted by the State Fire Marshal pursuant to Section 13143.The plan shall include, but not be limited to, the following:

(A) A description of how the center will provide training forstaff regarding the use and operation of the egress controldevice utilized by the center.

(B) A description of how the center will ensure theprotection of the participant’s personal rights consistent withapplicable regulations.

(C) A description of the center’s emergency evacuationprocedures for persons with Alzheimer’s disease and otherdementias.

(d) This section does not require an adult day health carecenter to use security devices in providing care for personswith Alzheimer’s disease and other dementias.

Comment. Subdivision (c)(4) of Section 1584 is amended to reflectthe replacement of the durable power of attorney for health care underthe Power of Attorney Law with advance health care directives under theHealth Care Decisions Law. See Prob. Code § 4600 et seq.

Health & Safety Code § 1599.73 (amended). Statement of patients’right to confidential treatment


1599.73. (a) Every contract of admission shall state thatresidents have a right to confidential treatment of medicalinformation.

(b) The contract shall provide a means by which theresident may authorize the disclosure of information tospecific persons, by attachment of a separate sheet that


conforms to the specifications of Section 56 of the CivilCode. After admission, the facility shall encourage competentresidents having capacity to make health care decisions toexecute a durable power of attorney for health care anadvance health care directive in the event that he or shebecomes unable to give consent for disclosure. The facilityshall make available upon request to the long-term careombudsman a list of newly admitted patients.

Comment. Section 1599.73 is amended to reflect the replacement ofthe durable power of attorney for health care under the Power ofAttorney Law with advance health care directives under the Health CareDecisions Law. See Prob. Code § 4600 et seq.

Health & Safety Code § 7100 (amended). Right to control dispositionof remains


7100. (a) The right to control the disposition of the remainsof a deceased person, the location and conditions ofinterment, and arrangements for funeral goods and services tobe provided, unless other directions have been given by thedecedent pursuant to Section 7100.1, vests in, and the duty ofdisposition and the liability for the reasonable cost ofdisposition of the remains devolves upon, the following in theorder named:

(1) An attorney-in-fact agent under a durable power ofattorney for health care executed pursuant to Chapter 1governed by Division 4.7 (commencing with Section 4600) ofPart 4 of Division 4.5 of the Probate Code.

(2) The surviving spouse.(3) The sole surviving adult child of the decedent, or if there

is more than one adult child of the decedent, one-half or moreof the surviving adult children. However, less than one-half ofthe surviving adult children shall be vested with the rights andduties of this section if they have used reasonable efforts to


notify all other surviving adult children of their instructionsand are not aware of any opposition to those instructions onthe part of more than one-half of all surviving adult children.For purposes of this section, “adult child” means a competentnatural or adopted child of the decedent who has attained 18years of age.

(4) The surviving parent or parents of the decedent. If oneof the surviving parents is absent, the remaining parent shallbe vested with the rights and duties of this section afterreasonable efforts have been unsuccessful in locating theabsent surviving parent.

(5) The surviving competent adult person or personsrespectively in the next degrees of kindred. If there is morethan one surviving person of the same degree of kindred, themajority of those persons. Less than the majority of survivingpersons of the same degree of kindred shall be vested with therights and duties of this section if those persons have usedreasonable efforts to notify all other surviving persons of thesame degree of kindred of their instructions and are not awareof any opposition to those instructions on the part of one-halfor more of all surviving persons of the same degree ofkindred.

(6) The public administrator when the deceased hassufficient assets.

(b)(1) If any person to whom the right of control has vestedpursuant to subdivision (a) has been charged with first orsecond degree murder or voluntary manslaughter inconnection with the decedent’s death and those charges areknown to the funeral director or cemetery authority, the rightof control is relinquished and passed on to the next of kin inaccordance with subdivision (a).

(2) If the charges against the person are dropped, or if theperson is acquitted of the charges, the right of control isreturned to the person.


(3) Notwithstanding this subdivision, no person who hasbeen charged with first or second degree murder or voluntarymanslaughter in connection with the decedent’s death towhom the right of control has not been returned pursuant toparagraph (2) shall have any right to control dispositionpursuant to subdivision (a) which shall be applied, to theextent the funeral director or cemetery authority know aboutthe charges, as if that person did not exist.

(c) A funeral director or cemetery authority shall havecomplete authority to control the disposition of the remains,and to proceed under this chapter to recover usual andcustomary charges for the disposition, when both of thefollowing apply:

(1) Either of the following applies:(A) The funeral director or cemetery authority has

knowledge that none of the persons described in paragraphs(1) to (6), inclusive, of subdivision (a) exists.

(B) None of the persons described in paragraphs (1) to (6),inclusive, of subdivision (a) can be found after reasonableinquiry, or contacted by reasonable means.

(2) The public administrator fails to assume responsibilityfor disposition of the remains within seven days after havingbeen given written notice of the facts. Written notice may bedelivered by hand, U.S. mail, facsimile transmission, ortelegraph.

(d) The liability for the reasonable cost of final dispositiondevolves jointly and severally upon all kin of the decedent inthe same degree of kindred and upon the estate of thedecedent. However, if a person accepts the gift of an entirebody under subdivision (a) of Section 7155.5, that person,subject to the terms of the gift, shall be liable for thereasonable cost of final disposition of the decedent.

(e) This section shall be administered and construed to theend that the expressed instructions of the decedent or the


person entitled to control the disposition shall be faithfullyand promptly performed.

(f) A funeral director or cemetery authority shall not beliable to any person or persons for carrying out theinstructions of the decedent or the person entitled to controlthe disposition.

(g) For purposes of paragraph (5) of subdivision (a),“competent adult” means an adult who has not been declaredincompetent by a court of law or who has been declaredcompetent by a court of law following a declaration ofincompetence.

Comment. Subdivision (a)(1) of Section 7100 is amended to refer tothe Health Care Decisions Law, which supersedes the former provisionsgoverning durable powers of attorney for health care, and to conformlanguage to the usage in the new law. The reference to “execution” of apower of attorney “pursuant to” the California statute has been replacedby a reference to the law “governing” powers of attorney. This revisionmakes the scope of the authority granted by this section consistent withthe general rules concerning recognition of powers of attorney for healthcare executed in other jurisdictions. See Prob. Code §§ 4605 (“advancehealth care directive” defined), 4674 (validity of written advancedirective executed in another jurisdiction).

Health & Safety Code § 7151 (amended). Who may make or revokeanatomical gift


7151. (a) Except as provided in Section 7152, any memberof the following classes of persons, in the order of prioritylisted, may make an anatomical gift of all or part of thedecedent’s body or a pacemaker for an authorized purpose,unless the decedent, at the time of death, has made anunrevoked refusal to make that anatomical gift:

(1) The attorney-in-fact agent under a valid durable powerof attorney for health care that expressly authorizes or doesnot limit the authority of the attorney-in-fact agent to make an


anatomical gift of all or part of the principal’s body or apacemaker.

(2) The spouse of the decedent.(3) An adult son or daughter of the decedent.(4) Either parent of the decedent.(5) An adult brother or sister of the decedent.(6) A grandparent of the decedent.(7) A guardian or conservator of the person of the decedent

at the time of death.(b) An anatomical gift may not be made by a person listed

in subdivision (a) if any of the following occur:(1) A person in a prior class is available at the time of death

to make an anatomical gift.(2) The person proposing to make an anatomical gift knows

of a refusal or contrary indications by the decedent.(3) The person proposing to make an anatomical gift knows

of an objection to making an anatomical gift by a member ofthe person’s class or a prior class.

(c) An anatomical gift by a person authorized undersubdivision (a) shall be made by a document of gift signed bythe person or the person’s telegraphic, recorded telephonic, orother recorded message, or other form of communicationfrom the person that is contemporaneously reduced to writingand signed by the recipient.

(d) An anatomical gift by a person authorized undersubdivision (a) may be revoked by any member of the sameor a prior class if, before procedures have begun for theremoval of a part from the body of the decedent, thephysician, surgeon, technician, or enucleator removing thepart knows of the revocation.

(e) A failure to make an anatomical gift under subdivision(a) is not an objection to the making of an anatomical gift.

Comment. Subdivision (a)(1) of Section 7151 is amended forconsistency with the language and authority provided the agent under apower of attorney for health care. See Prob. Code §§ 4683 (scope of


agent’s authority), 4701 (optional form of advance health care directive).This amendment resolves a conflict between this section and the broadpresumptive authority granted the agent selected by the principal. Ofcourse, the agent must comply with the wishes of the principal asprovided in subdivision (b). See also Prob. Code § 4684 (standardgoverning agent’s health care decisions).

Health & Safety Code §§ 7185-7194.5 (repealed). Natural Death Act

SEC. ____. Chapter 3.9 (commencing with Section 7185) ofPart 1 of Division 7 of the Health and Safety Code isrepealed.

§ 7185 (repealed). Short titleComment. Former Section 7185 is not continued. The Natural Death

Act is superseded by the provisions of Division 4.7 (commencing withSection 4600) of the Probate Code relating to advance health caredirectives. The new law is not limited to decisions concerning life-sustaining treatment of persons in a terminal or permanent unconsciouscondition.

§ 7185.5 (repealed). Legislative findings and declarationsComment. The substance of subdivisions (a)-(e) of former Section

7185 is continued in Probate Code Section 4650 (legislative findings),except that the references to “terminal condition or permanentunconscious decision” have been omitted to reflect relevant case law andthe scope of the Uniform Health Care Decisions Act (Prob. Code § 4670et seq.). See also Section 4750 (judicial intervention disfavored).

Subdivision (f) is omitted as surplus. See former Section 7185Comment.

§ 7186 (repealed). DefinitionsComment. Subdivision (a) of former Section 7186 is continued in

Probate Code Section 4631 (“primary physician” defined) withoutsubstantive change. Subdivision (b) is superseded by Probate CodeSection 4605 (“advance health care directive” defined). Subdivision (c) iscontinued in Probate Code Section 4621 (“health care provider” defined)without substantive change. Subdivisions (d) and (e) are not continued.See former Section 7185 Comment.

Subdivision (f) is unnecessary in view of Probate Code Section 56(“person” defined). Subdivision (g) is continued in Probate Code Section4627 (“physician” defined) without change. Subdivision (h) is


superseded by Probate Code Sections 4670 (who may give individualinstruction). Subdivision (i) is unnecessary in view of Probate CodeSection 74 (“state” defined). Subdivision (j) is not continued. See formerSection 7185 Comment.

§ 7186.5 (repealed). Declaration governing life-sustaining treatmentComment. The first sentence of former Section 7186.5(a) is

superseded by Probate Code Section 4670 (who may give individualinstruction). The second sentence concerning general witnessingrequirements is not continued; an individual health care instruction is notgenerally required to be witnessed. The third sentence concerning specialwitnessing requirements in skilled nursing facilities is continued inProbate Code Section 4673 without substantive change.

The declaration form in subdivision (b) is superseded by the optionalform of an advance health care directive in Probate Code Section 4701and related substantive rules. For transitional provisions relating todeclarations executed under the repealed Natural Death Act, see Prob.Code § 4665(a).

The substance of the record-keeping duty in subdivision (c) iscontinued in Probate Code Section 4731. The language concerning ahealth care provider who is unwilling to comply is superseded by ProbateCode Sections 4734 (right to decline for reasons of conscience orinstitutional policy), 4735 (right to decline to provide ineffective care),and 4736 (duty of declining health care provider or institution).

§ 7187 (repealed). Skilled nursing facility or long-term health carefacility

Comment. Former Section 7187 is continued in Probate Code Section4673(c) without substantive change. See also Prob. Code Section 4639(“skilled nursing facility” defined).

§ 7187.5 (repealed). When declaration becomes operativeComment. The first sentence of former Section 7187.5 is not

continued. See former Section 7185 Comment. As to the determinationof preconditions to operation of the declaration (advance health caredirective), see Probate Code Sections 4651(b)(1) (authority of individualwith capacity not affected), 4657 (presumption of capacity), 4658(determination of capacity and other conditions).

The duty to comply with the declaration in the second sentence issuperseded by Probate Code Section 4733(a). The duty to transfer issuperseded by Probate Code Section 4736 (duty of declining health careprovider or institution).


§ 7188 (repealed). RevocationComment. Subdivision (a) of former Section 7188 is superseded by

Probate Code Section 4695 (revocation of advance directive).The duty to record the revocation provided in subdivision (b) is

continued in Probate Code Section 4731(a) without substantive change.

§ 7189 (repealed). Determination of terminal or permanentunconscious condition

Comment. Former Section 7189 is superseded by Probate CodeSections 4658 (authority to determine capacity and other conditions) and4732 (duty to record relevant information).

§ 7189.5 (repealed). Patient’s right to make decisions concerning life-sustaining treatment

Comment. Subdivision (a) of former Section 7189.5 is replaced byProbate Code Section 4651(b)(1). See also Prob. Code §§ 4657(presumption of capacity), 4695 (revocation of advance directive).

Subdivision (b) is replaced by the general rules in Probate CodeSections 4654 (compliance with generally accepted health carestandards), 4733 (obligation to comply with reasonable interpretation ofhealth care instructions and decisions). See also Prob. Code § 4736(b)(continuing care until transfer can be accomplished).

Subdivision (c) is not continued. But cf. Prob. Code § 4652(e) (HealthCare Decisions Law does not authorize consent to abortion).

§ 7190 (repealed). Duties of health care provider unwilling to complywith chapter

Comment. Former Section 7190 is continued in Probate Code Section4736 (duty of declining health care provider or institution) withoutsubstantive change.

§ 7190.5 (repealed). Liability and professional disciplineComment. Former Section 7190.5 is superseded by Probate Code

Section 4740 (immunities of health care provider and institution).

§ 7191 (repealed). CrimesComment. Subdivisions (a) and (b) of former Section 7191 are

superseded by Probate Code Section 4742, which provides statutorydamages instead of criminal penalties.

Subdivisions (c) and (d) are replaced by Probate Code Section 4743(criminal penalties).


Subdivisions (e) and (f) are superseded by the prohibition in ProbateCode Section 4675 (restriction on requiring or prohibiting advancedirective).

The rule in subdivision (g) is continued in Probate Code Section4742(c) (statutory damages cumulative with other remedies).

§ 7191.5 (repealed). Effect of death on life insurance or annuityComment. Subdivision (a) of former Section 7191.5 is generalized in

Probate Code Section 4656 (effect on death benefits).Subdivision (b) is replaced by Probate Code Section 4656.Subdivision (c) is continued in Probate Code Section 4675 (restriction

on requiring or prohibiting advance directive) without substantivechange.

Subdivision (d) is continued and generalized in Probate Code Section4655(a) (impermissible constructions).

Subdivision (e) is superseded by Probate Code Section 4651(b)(1)(authority not affected). See also Prob. Code § 4657 (presumption ofcapacity)

Subdivision (f) is continued in Probate Code Section 4654 (compliancewith generally accepted health care standards) without substantivechange.

Subdivision (g) is continued in Probate Code Section 4653 (mercykilling, assisted suicide, euthanasia not approved) without substantivechange.

Subdivision (h) is superseded by Probate Code Sections 4651(b) (otherauthority not affected) and 4751 (cumulative remedies).

§ 7192 (repealed). Presumption of validity of declarationComment. Former Section 7192 is continued and generalized in

Probate Code Section 4674(b) (validity of written advance directiveexecuted in another jurisdiction).

§ 7192.5 (repealed). Validity of declarations executed in another stateComment. Former Section 7192.5 is continued in Probate Code

Section 4674(a) (validity of written advance directive executed inanother jurisdiction) without substantive change.

§ 7193 (repealed). Effect of durable power of attorney for health careComment. Former Section 7193 is superseded by Probate Code

Section 4698 (effect of later advance directive on earlier advancedirective).


§ 7193.5 (repealed). Instruments to be given effectComment. Former Section 7193.5 is superseded by Probate Code

Sections 4665 (application to existing advance directives), 4674 (validityof written advance directive executed in another jurisdiction). See alsoProb. Code § 4605 (“advance health care directive” defined).

§ 7194 (repealed). Severability clauseComment. Former Section 7194 is superseded by Probate Code

Section 11 (severability).

§ 7194.5 (repealed). Conformity with Uniform Rights of theTerminally Ill Act

Comment. Former Section 7194.5 is superseded by Probate CodeSection 2(b) (construction of provisions drawn from uniform acts).

Health & Safety Code § 24179.5. Application of chapter towithholding or withdrawal of life-sustaining procedures


24179.5. Notwithstanding any other provision of thischapter, this chapter shall does not apply to an adult person ina terminal condition who executes a directive directing thewithholding or withdrawal of life-sustaining procedurespursuant to Section 7188. To the extent of any conflict, theprovisions of Chapter 3.9 (commencing with Section 7185) ofPart 1, of Division 7 shall prevail Division 4.7 (commencingwith Section 4600) of the Probate Code prevails over theprovisions of this chapter.

Comment. Section 24179.5 is amended to reflect the replacement ofthe Natural Death Act in former Section 7185 et seq. with the HealthCare Decisions Law, Probate Code Section 4600 et seq.


PROBATE CODE

Prob. Code § 811 (amended). Deficits in mental functions

SEC. ____. Section 811 of the Probate Code is amended toread:

811. (a) A determination that a person is of unsound mindor lacks the capacity to make a decision or do a certain act,including, but not limited to, the incapacity to contract, tomake a conveyance, to marry, to make medical decisions, toexecute wills, or to execute trusts, shall be supported byevidence of a deficit in at least one of the following mentalfunctions, subject to subdivision (b), and evidence of acorrelation between the deficit or deficits and the decision oracts in question:

(1) Alertness and attention, including, but not limited to, thefollowing:

(A) Level of arousal or consciousness.(B) Orientation to time, place, person, and situation.(C) Ability to attend and concentrate.(2) Information processing, including, but not limited to, the

following:(A) Short- and long-term memory, including immediate

recall.(B) Ability to understand or communicate with others,

either verbally or otherwise.(C) Recognition of familiar objects and familiar persons.(D) Ability to understand and appreciate quantities.(E) Ability to reason using abstract concepts.(F) Ability to plan, organize, and carry out actions in one’s

own rational self-interest.(G) Ability to reason logically.(3) Thought processes. Deficits in these functions may be

demonstrated by the presence of the following:(A) Severely disorganized thinking.


(B) Hallucinations.(C) Delusions.(D) Uncontrollable, repetitive, or intrusive thoughts.(4) Ability to modulate mood and affect. Deficits in this

ability may be demonstrated by the presence of a pervasiveand persistent or recurrent state of euphoria, anger, anxiety,fear, panic, depression, hopelessness or despair, helplessness,apathy or indifference, that is inappropriate in degree to theindividual’s circumstances.

(b) A deficit in the mental functions listed above may beconsidered only if the deficit, by itself or in combination withone or more other mental function deficits, significantlyimpairs the person’s ability to understand and appreciate theconsequences of his or her actions with regard to the type ofact or decision in question.

(c) In determining whether a person suffers from a deficit inmental function so substantial that the person lacks thecapacity to do a certain act, the court may take intoconsideration the frequency, severity, and duration of periodsof impairment.

(d) The mere diagnosis of a mental or physical disordershall not be sufficient in and of itself to support adetermination that a person is of unsound mind or lacks thecapacity to do a certain act.

(e) This part applies only to the evidence that is presentedto, and the findings that are made by, a court determining thecapacity of a person to do a certain act or make a decision,including, but not limited to, making medical decisions.Nothing in this part shall affect affects the decisionmakingprocess set forth in Section 1418.8 of the Health and SafetyCode, nor provided in Chapter 4 (commencing with Section4720) of Part 2 of Division 4.7. This part does not increase ordecrease the burdens of documentation on, or potentialliability of, health care providers who, outside the judicial


context, determine the capacity of patients to make a medicaldecision.

Comment. Section 811 is amended to reflect the replacement ofHealth and Safety Code Section 1418.8 with Probate Code Sections4720-4726 in the Uniform Health Care Decisions Act.

Prob. Code § 1302 (amended). Grounds for appeal under Power ofAttorney Law


1302. With respect to a power of attorney, the grant orrefusal to grant the following orders is appealable governedby the Power of Attorney Law (Division 4.5 (commencingwith Section 4000)), an appeal may be taken from any of thefollowing:

(a) Any final order under Section 4941 4541, except anorder pursuant to subdivision (c) of Section 4941 4541.

(b) Any final order under Section 4942, except an orderpursuant to subdivision (c) of Section 4942.

(c) An order dismissing the petition or denying a motion todismiss under Section 4944 4543.

Comment. Section 1302 is amended to reflect the renumbering offormer Sections 4900-4947 and to refer to powers of attorney governedby the Power of Attorney Law. Appeals relating to powers of attorneygoverned by the Health Care Decisions Law are governed by Section1302.5. The introductory clause is also revised to correct erroneouslanguage.

Prob. Code § 1302.5 (added). Grounds for appeal under Health CareDecisions Law

SEC. ____. Section 1302.5 is added to the Probate Code, toread:

1302.5. With respect to an advance health care directivegoverned by the Health Care Decisions Law (Division 4.7(commencing with Section 4600)), an appeal may be takenfrom any of the following:

(a) Any final order under Section 4766.


(b) An order dismissing the petition or denying a motion todismiss under Section 4768.

Comment. Section 1302.5 is added to reflect enactment of the HealthCare Decisions Law (Section 4600 et seq.) and the removal of health carepowers of attorney from the Power of Attorney Law (Section 4000 etseq.).

Prob. Code § 2105 (amended). Joint guardians or conservators


2105. (a) The court, in its discretion, may appoint for award or conservatee:

(1) Two or more joint guardians or conservators of theperson.

(2) Two or more joint guardians or conservators of theestate.

(3) Two or more joint guardians or conservators of theperson and estate.

(b) When joint guardians or conservators are appointed,each shall qualify in the same manner as a sole guardian orconservator.

(c) Subject to subdivisions (d) and (e):(1) Where there are two guardians or conservators, both

must concur to exercise a power.(2) Where there are more than two guardians or

conservators, a majority must concur to exercise a power.(d) If one of the joint guardians or conservators dies or is

removed or resigns, the powers and duties continue in theremaining joint guardians or conservators until furtherappointment is made by the court.

(e) Where joint guardians or conservators have beenappointed and one or more are (1) absent from the state andunable to act, (2) otherwise unable to act, or (3) legallydisqualified from serving, the court may, by order made with


or without notice, authorize the remaining joint guardians orconservators to act as to all matters embraced within its order.

(f) If a custodial parent has been diagnosed as having aterminal condition, as evidenced by a declaration executed bya licensed physician, the court, in its discretion, may appointthe custodial parent and a person nominated by the custodialparent as joint guardians of the person of the minor. However,this appointment shall not be made over the objection of anoncustodial parent without a finding that the noncustodialparent’s custody would be detrimental to the minor, asprovided in Section 3041 of the Family Code. It is the intentof the Legislature in enacting the amendments to thissubdivision adopted during the 1995-96 Regular Session for aparent with a terminal condition to be able to makearrangements for the joint care, custody, and control of his orher minor children so as to minimize the emotional stress of,and disruption for, the minor children whenever the parent isincapacitated or upon the parent’s death, and to avoid theneed to provide a temporary guardian or place the minorchildren in foster care, pending appointment of a guardian, asmight otherwise be required.

“Terminal condition,” for purposes of this subdivision,means an incurable and irreversible condition that, withoutthe administration of life-sustaining treatment, will, withinreasonable medical judgment, result in death.

Nothing in this section shall be construed to broaden ornarrow the definition of the term “terminal condition,” asdefined in subdivision (j) of Section 7186 of the Health andSafety Code.

Comment. The last paragraph of Section 2105 is deleted because thedefinition to which it referred is repealed. See former Health & SafetyCode § 7186 Comment.


Prob. Code § 2355 (amended). Health care where conservatee lackscapacity


2355. (a) If the conservatee has been adjudicated to lack thecapacity to give informed consent for medical treatment makehealth care decisions, the conservator has the exclusiveauthority to give consent for such medical treatment to beperformed on make health care decisions for the conservateeas that the conservator in good faith based on medical advicedetermines to be necessary and the. The conservator shallmake health care decisions for the conservatee in accordancewith the conservatee’s individual health care instructions, ifany, and other wishes to the extent known to the conservator.Otherwise, the conservator shall make the decision inaccordance with the conservator’s determination of theconservatee’s best interest. In determining the conservatee’sbest interest, the conservator shall consider the conservatee’spersonal values to the extent known to the conservator. Theconservator may require the conservatee to receive suchmedical treatment the health care, whether or not theconservatee objects. In any such this case, the consent healthcare decision of the conservator alone is sufficient and noperson is liable because the medical treatment is performedupon health care is administered to the conservatee withoutthe conservatee’s consent. For the purposes of thissubdivision, “health care” and “health care decision” havethe meanings provided in Sections 4615 and 4617,respectively.

(b) If prior to the establishment of the conservatorship theconservatee was an adherent of a religion whose tenets andpractices call for reliance on prayer alone for healing, thetreatment required by the conservator under the provisions ofthis section shall be by an accredited practitioner of thatreligion.


Comment. Subdivision (a) of Section 2105 is amended to add thesecond sentence providing a standard for making health care decisions.This standard is the same in substance as the standard applicable to othersurrogate health care decisionmakers under the Health Care DecisionsLaw of Division 4.7 (commencing with Section 4600). See Sections 4684(standard governing agent’s health care decisions under power ofattorney for health care), 4714 (standard governing statutory surrogate’shealth care decisions), 4725 (application of statutory surrogate rules tosurrogate committee). Under this standard, the surrogate has both theright and fiduciary duty (“shall make health care decisions”) to make adecision based on the individual circumstances of the conservatee. Asamended, subdivision (a) is consistent with Conservatorship of Drabick,220 Cal. App. 3d 185, 245 Cal. Rptr. 840 (1988):

Incapacitated patients “retain the right to have appropriate medicaldecisions made on their behalf. An appropriate medical decision is onethat is made in the patient’s best interests, as opposed to the interests ofthe hospital, the physicians, the legal system, or someone else. Tosummarize, California law gives persons a right to determine the scopeof their own medical treatment, this right survives incompetence in thesense that incompetent patients retain the right to have appropriatedecisions made on their behalf, and Probate Code section 2355delegates to conservators the right and duty to make such decisions.

Id. at 205. Use of the terms “health care” and “health care decision” fromthe Health Care Decisions Law make clear that the scope of health caredecisions that can be made by a conservator under this section is thesame as provided in the Health Care Decisions Law.

The importance of the statutory language concerning the exclusiveauthority of the conservator and the duty this places on the conservatorwas also emphasized in Drabick:

The statute gives the conservator the exclusive authority to exercise theconservatee’s rights, and it is the conservator who must make the finaltreatment decision regardless of how much or how little informationabout the conservatee’s preferences is available. There is no necessityor authority for adopting a rule to the effect that the conservatee’sdesire to have medical treatment withdrawn must be proved by clearand convincing evidence or another standard. Acknowledging that thepatient’s expressed preferences are relevant, it is enough for theconservator, who must act in the conservatee’s best interests, toconsider them in good faith.

Id. at 211-12. The intent of the rule in subdivision (a) is to protect andfurther the patient’s interest in making a health care decision inaccordance with the patient’s expressed desires, where known, and if not,to make a decision in the patient’s best interest, taking personal valuesinto account. The necessary determinations are to be made by the


conservator, whether private or public, in accordance with the statutorystandard. Court control or intervention in this process is neither requiredby statute, nor desired by the courts. See, e.g., Conservatorship ofMorrison, 206 Cal. App. 3d 304, 312, 253 Cal. Rptr. 530 (1988).Drabick, 200 Cal. App. 3d at 198-200. See also Sections 4650(d)(legislative findings), 4750 (judicial intervention disfavored).

This section does not specify any special evidentiary standard for thedetermination of the conservatee’s wishes or best interest. Consequently,the general rule applies: the standard is by preponderance of theevidence. Proof is not required by clear and convincing evidence.

Prob. Code § 2356 (amended). Limitations on application of chapter


2356. (a) No ward or conservatee may be placed in a mentalhealth treatment facility under this division against the will ofthe ward or conservatee. Involuntary civil placement of award or conservatee in a mental health treatment facility maybe obtained only pursuant to Chapter 2 (commencing withSection 5150) or Chapter 3 (commencing with Section 5350)of Part 1 of Division 5 of the Welfare and Institutions Code.Nothing in this subdivision precludes the placing of a ward ina state hospital under Section 6000 of the Welfare andInstitutions Code upon application of the guardian asprovided in that section. The Director of Mental Health shalladopt and issue regulations defining “mental health treatmentfacility” for the purposes of this subdivision.

(b) No experimental drug as defined in Section 111515 ofthe Health and Safety Code may be prescribed for oradministered to a ward or conservatee under this division.Such an experimental drug may be prescribed for oradministered to a ward or conservatee only as provided inArticle 4 (commencing with Section 111515) of Chapter 6 ofPart 5 of Division 104 of the Health and Safety Code.

(c) No convulsive treatment as defined in Section 5325 ofthe Welfare and Institutions Code may be performed on a


ward or conservatee under this division. Convulsive treatmentmay be performed on a ward or conservatee only as providedin Article 7 (commencing with Section 5325) of Chapter 2 ofPart 1 of Division 5 of the Welfare and Institutions Code.

(d) No minor may be sterilized under this division.(e) This chapter is subject to any of the following

instruments if a valid and effective: advance health caredirective under the Health Care Decisions Law (Division 4.7(commencing with Section 4600)).

(1) A directive of the conservatee under Chapter 3.9(commencing with Section 7185) of Part 1 of Division 7 ofthe Health and Safety Code (Natural Death Act).

(2) A power of attorney for health care, whether or not adurable power of attorney.

Comment. Subdivision (e) of Section 2356 is amended to refer to theprovisions of the Health Care Decisions Law that replace the formerNatural Death Act and the former durable power of attorney for healthcare provisions. This is a technical, nonsubstantive change that preservesthe supremacy of the individual’s advance directive over the rulesconcerning conservatorships.

Heading amended

SEC. ____. The heading of Part 7 (commencing withSection 3200) of Division 4 of the Probate Code is amendedto read:

PAR T 7 . AUT HOR IZ AT ION OF M E DIC ALT R E AT M E NT C A P A C ITY DE TE R M IN A TION S

A N D HE A LTH C A R E DE C IS ION S FORADUL T WIT HOUT C ONSE R VAT OR

Comment. The part heading is amended to reflect the expanded scopeof this part. See 1995 Cal. Stat. ch. 842, § 9 (adding determination ofcapacity to consent to specified medical treatment as independent groundfor petition under Section 3201).


Revised 1990 Comment. This part supersedes Part 7 (commencingwith Section 3200) of Division 4 of the repealed Probate Code. Thesuperseded part was enacted on recommendation of the California LawRevision Commission. See Recommendation Relating to Guardianship-Conservatorship Law, 14 Cal. L. Revision Comm’n Reports 501 (1978).See also Report of Assembly Committee on Judiciary on Assembly BillsNos. 261 and 167, republished in 15 Cal. L. Revision Comm’n Reports1061, 1091 (1980). For the Guardianship-Conservatorship Law asenacted in 1979 (Chapter 726 of the Statutes of 1979) with the revisionsmade by Chapters 89 and 246 of the Statutes of 1980, see Guardianship-Conservatorship Law, 15 Cal. L. Revision Comm’n Reports 451 (1980).

The provisions of this part afford an alternative to establishing aconservatorship of the person where there is no ongoing need for aconservatorship. The procedural rules of this part provide an expeditiousmeans of obtaining authorization for medical treatment whilesafeguarding basic rights of the patient: The patient has a right tocounsel. Section 3205. The hearing is held after notice to the patient, thepatient’s attorney, and such other persons as the court orders. Section3206. The court may determine the issue on medical declarations alone ifthe attorney for the petitioner and the attorney for the patient so stipulate.Section 3207. The court may not order medical treatment under this partif the patient has capacity to give informed consent to the treatment butrefuses to do so. Section 3208.5.

Prob. Code § 3200 (amended). Definitions


3200. As used in this part, “patient” part:(a) “Health care” means any care, treatment, service, or

procedure to maintain, diagnose, or otherwise affect apatient’s physical or mental condition.

(b) “Health care decision” means a decision regarding thepatient’s health care, including the following:

(1) Selection and discharge of health care providers andinstitutions.

(2) Approval or disapproval of diagnostic tests, surgicalprocedures, programs of medication.


(3) Directions to provide, withhold, or withdraw artificialnutrition and hydration and all other forms of health care,including cardiopulmonary resuscitation.

(c) “Health care institution” means an institution, facility,or agency licensed, certified, or otherwise authorized orpermitted by law to provide health care in the ordinarycourse of business.

(d) “Patient” means an adult who does not have aconservator of the person and who is in need of medicaltreatment for whom a health care decision needs to be made.

Comment. Section 3200 is amended to adopt definitions that areconsistent with the Health Care Decisions Law. See Section 4500 et seq.The definition of “health care decision” in subdivision (b) makes clear, asused in other provisions in this part, that court-authorized health caredecisions include end-of-life decisions. See Section 3208(c). This isconsistent with the scope of the Health Care Decisions Law.

Prob. Code § 3201 (amended). Petition for court authorization


3201. (a) A petition may be filed to determine that a patienthas the capacity to give informed consent to a specifiedmedical treatment for make a health care decision concerningan existing or continuing medical condition.

(b) A petition may be filed to determine that a patient lacksthe capacity to give informed consent to a make a health caredecision concerning specified medical treatment for anexisting or continuing medical condition, and further for anorder authorizing a designated person to give consent to suchtreatment make a health care decision on behalf of thepatient.

(c) One proceeding may be brought under this part underboth subdivisions (a) and (b).

(d) In determining whether a person’s mental functioning isso severely impaired that the person lacks the capacity to giveinformed consent to any form of medical treatment, the court


may take into consideration the frequency, severity andduration of periods of impairment.

(e) Nothing in this part shall supersede the right that anyperson may have under existing law to make medicaldecisions on behalf of a patient, or affect the decisionmakingprocess of a long-term health care facility, as defined insubdivision (b) of Section 1418.8 of the Health and SafetyCode.

(f) This chapter is permissive and cumulative for the reliefto which it applies.

(g) Nothing in this part shall be construed to supersede orimpair the right of any individual to choose treatment byspiritual means in lieu of medical treatment, nor shall anyperson choosing treatment by spiritual means, in accordancewith the tenets and practices of that individual’s establishedreligious tradition, be required to submit to medical testing ofany kind pursuant to a determination of competency.

Comment. Subdivisions (a) and (b) of Section 3201 are amended touse the terminology of Section 3200 and make the language internallyconsistent. See Section 3200 Comment. Other technical, nonsubstantivechanges are also made.

Subdivision (d) is continued in Section 3208(b) (order authorizingtreatment) without substantive change. See Section 3208 Comment.

Subdivision (e) is continued in Section 3210(c) (supplemental,alternative procedure) without substantive change. Subdivision (f) iscontinued in Section 3210(a) without substantive change. See Section3210 Comment.

Subdivision (g) is continued in Section 3212 (choice of treatment byspiritual means) without substantive change. See Section 3212 Comment.

Prob. Code § 3202 (unchanged). Jurisdiction and venue

3202. The petition may be filed in the superior court of anyof the following counties:

(a) The county in which the patient resides.(b) The county in which the patient is temporarily living.(c) Such other county as may be in the best interests of the

patient.


Prob. Code § 3203 (amended). Persons authorized to file petition


3203. A petition may be filed by any of the following:(a) The patient.(b) The patient’s spouse of the patient.(c) A relative or friend of the patient, or other interested

person, including the patient’s agent under a power ofattorney for health care.

(d) The patient’s physician.(e) A person acting on behalf of the medical facility health

care institution in which the patient is located if the patient isin a medical facility health care institution.

(f) The public guardian or such other county officer as isdesignated by the board of supervisors of the county in whichthe patient is located or resides or is temporarily living.

Comment. Section 3203 is amended to use the terminology of Section3200. See Section 3200 Comment. Other technical, nonsubstantivechanges are also made. Subdivision (c) is amended to make clear that anagent under a power of attorney for health care is an interested person.See Section 4607 (“agent” defined under Health Care Decisions Law).

Prob. Code § 3204 (amended). Contents of petition


3204. The petition shall state, or set forth by a medicaldeclaration attached thereto to the petition, all of thefollowing so far as is known to the petitioner at the time thepetition is filed:

(a) The nature condition of the medical condition of thepatient which patient’s health that requires treatment.

(b) The recommended course of medical treatment whichhealth care that is considered to be medically appropriate.


(c) The threat to the health of the patient patient’s conditionif authorization for the recommended course of treatmenthealth care is delayed or denied by the court.

(d) The predictable or probable outcome of therecommended course of treatment health care.

(e) The medically available alternatives, if any, to thecourse of treatment recommended health care.

(f) The efforts made to obtain an informed consent from thepatient.

(g) If the petition is filed by a person on behalf of a medicalfacility health care institution, the name of the person to bedesignated to give consent to the recommended course oftreatment health care on behalf of the patient.

(h) The deficit or deficits in the patient’s mental functionslisted in subdivision (a) of Section 811 which that areimpaired, and identifying an identification of a link betweenthe deficit or deficits and the patient’s inability to respondknowingly and intelligently to queries about therecommended medical treatment health care or inability toparticipate in a treatment decision about the recommendedmedical treatment health care by means of a rational thoughtprocess.

(i) The names and addresses, so far as they are known to thepetitioner, of the persons specified in subdivision (b) ofSection 1821.

Comment. Section 3204 is amended to use the terminology of Section3200. See Section 3200 Comment. Other technical, nonsubstantivechanges are also made. The reference to “informed” consent is omitted asunnecessary. See Section 3208.5 Comment.

Prob. Code § 3205 (unchanged). Appointment of legal counsel

3205. Upon the filing of the petition, the court shalldetermine the name of the attorney the patient has retained torepresent the patient in the proceeding under this part or thename of the attorney the patient plans to retain for that


purpose. If the patient has not retained an attorney and doesnot plan to retain one, the court shall appoint the publicdefender or private counsel under Section 1471 to consultwith and represent the patient at the hearing on the petitionand, if such appointment is made, Section 1472 applies.

Prob. Code § 3206 (amended). Notice of hearing


3206. (a) Not less than 15 days before the hearing, notice ofthe time and place of the hearing and a copy of the petitionshall be personally served on the patient and, the patient’sattorney, and the agent under the patient’s power of attorneyfor health care, if any.

(b) Not less than 15 days before the hearing, notice of thetime and place of the hearing and a copy of the petition shallbe mailed to the following persons:

(1) The patient’s spouse, if any, of the proposed conservateeat the address stated in the petition.

(2) The patient’s relatives named in the petition at theiraddresses stated in the petition.

(c) For good cause, the court may shorten or waive notice ofthe hearing as provided by this section. In determining theperiod of notice to be required, the court shall take intoaccount both of the following:

(1) The existing medical facts and circumstances set forth inthe petition or in a medical affidavit declaration attached tothe petition or in a medical affidavit declaration presented tothe court.

(2) The desirability, where the condition of the patientpermits, of giving adequate notice to all interested persons.

Comment. Subdivision (b) of Section 3206 is amended to correct thereference to a “proposed conservatee.” See Section 3200(d) (“patient”defined).


Subdivision (c) is amended to replace the references to “affidavit,” inconformity with Section 3204.

Prob. Code § 3207 (amended). Submission for determination onmedical affidavits


3207. Notwithstanding Section 3206, the matter presentedby the petition may be submitted for the determination of thecourt on proper and sufficient medical affidavits ordeclarations if the attorney for the petitioner and the attorneyfor the patient so stipulate and further stipulate that thereremains no issue of fact to be determined.

Comment. Section 3207 is amended to eliminate the reference to“affidavits,” in conformity with Section 3204.

Prob. Code § 3208 (amended). Order authorizing treatment


3208. (a) The Except as provided in subdivision (b), thecourt may make an order authorizing the recommendedcourse of medical treatment of health care for the patient anddesignating a person to give consent to the recommendedcourse of medical treatment health care on behalf of thepatient if the court determines from the evidence all of thefollowing:

(1) The existing or continuing medical condition of thepatient patient’s health requires the recommended course ofmedical treatment health care.

(2) If untreated, there is a probability that the condition willbecome life-endangering or result in a serious threat to thephysical or mental health of the patient.

(3) The patient is unable to give an informed consent to therecommended course of treatment health care.


(b) In determining whether the patient’s mental functioningis so severely impaired that the patient lacks the capacity tomake any health care decision, the court may take intoconsideration the frequency, severity, and duration of periodsof impairment.

(c) The court may make an order authorizing withholdingor withdrawing artificial nutrition and hydration and allother forms of health care and designating a person to give orwithhold consent to the recommended health care on behalfof the patient if the court determines from the evidence all ofthe following:

(1) The recommended health care is in accordance with thepatient’s best interest, taking into consideration the patient’spersonal values to the extent known to the petitioner.

(2) The patient is unable to consent to the recommendedhealth care.

(d) Instead of designating a person to make health caredecisions on behalf of the patient under this section, the courtmay refer the matter to a surrogate committee under Chapter4 (commencing with Section 4720) of Part 2 of Division 4.7.If there is no appropriate surrogate committee in existence,the court may order creation of a surrogate committee to actunder Chapter 4 (commencing with Section 4720) of Part 2 ofDivision 4.7.

(b) If the patient has the capacity to give informed consentto the recommended course of medical treatment, the courtshall so find in its order.

(c) If the court finds that the patient has the capacity to giveinformed consent to the recommended course of medicaltreatment, but that the patient refuses consent, the court shallnot make an order authorizing the course of recommendedmedical treatment or designating a person to give consent tosuch treatment. If an order has been made authorizing therecommended course of medical treatment and designating a


person to give consent to that treatment, the order shall berevoked if the court determines that the patient has recoveredthe capacity to give informed consent to the recommendedcourse of medical treatment. Until revoked or modified, theorder is effective authorization for the course of medicaltreatment.

(d) In a proceeding under this part, where the court hasdetermined that the patient has the capacity to give informedconsent, the court shall, if requested, determine whether thepatient has accepted or refused the recommended course oftreatment, and whether a patient’s consent to therecommended course of treatment is an informed consent.

Comment. Subdivision (a) of Section 3208 is amended to use theterminology of Section 3200. See Section 3200 Comment. Othertechnical, nonsubstantive changes are also made. The reference to“informed” consent has been omitted as surplus. See Section 3805Comment.

New subdivision (b) continues former subdivision (d) of Section 3201without substantive change.

A new subdivision (c) is added to permit withholding or withdrawal ofhealth care, including artificial nutrition and hydration. This amendmentextends the authority of the court to authorize health care decisions to thesame extent as surrogates and subject to the same standards as providedin the Health Care Decisions Law. See, e.g., Sections 4684 (standardgoverning agent’s health care decisions under power of attorney forhealth care), 4714 (standard governing surrogate’s health care decisions).

New subdivision (d) provides a mechanism for the court to use thesurrogate committee procedure in the Health Care Decisions Law. SeeSections 4720-4726. In such a case, the surrogate committee would begoverned by the Health Care Decisions Law, except as limited by thecourt’s order. Nothing in this section is intended to encourage courtcontrol or involvement in the surrogate committee process, but inappropriate cases, such as where continuing health care decisions willneed to be made, the surrogate committee may offer the best approach.

Former subdivisions (b)-(d) are continued in Section 3208.5 withoutsubstantive change. See Section 3208.5 Comment.


Prob. Code § 3208.5 (added). Effect of order determining thatpatient has capacity

SEC. ____. Section 3208.5 is added to the Probate Code, toread:

3208.5. In a proceeding under this part:(a) Where the patient has the capacity to consent to the

recommended health care, the court shall so find in its order.(b) Where the court has determined that the patient has the

capacity to consent to the recommended health care, the courtshall, if requested, determine whether the patient has acceptedor refused the recommended health care, and whether thepatient’s consent to the recommended health care is aninformed consent.

(c) Where the court finds that the patient has the capacity toconsent to the recommended health care, but that the patientrefuses consent, the court shall not make an order authorizingthe recommended health care or designating a person to giveconsent to the recommended health care. If an order has beenmade authorizing the recommended health care anddesignating a person to give consent to the recommendedhealth care, the order shall be revoked if the court determinesthat the patient has recovered the capacity to consent to therecommended health care. Until revoked or modified, theorder is effective authorization for the recommended healthcare.

Comment. Section 3208.5 continues former subdivisions (b)-(d) ofSection 3208 without substantive change. The subdivisions have beenplaced in a different order. Terminology has been conformed to thedefinitions in Section 3200. Thus, for example, “health care” replaces“medical treatment” appearing in the former provision. Except insubdivision (b), references to “informed” consent have been omitted assurplus and for consistency with other provisions in this part and in theHealth Care Decisions Law (Section 4600 et seq.). To be effective, thepatient’s consent must satisfy the law of informed consent.


Prob. Code § 3209 (unchanged). Continuing jurisdiction of court

3209. The court in which the petition is filed has continuingjurisdiction to revoke or modify an order made under this partupon a petition filed, noticed, and heard in the same manneras an original petition filed under this part.

Prob. Code § 3210 (amended). Procedure supplemental andalternative


3210. (a) This part is supplemental and alternative to otherprocedures or methods for obtaining medical consent tohealth care or making health care decisions, and ispermissive and cumulative for the relief to which it applies.

(b) Nothing in this part limits the providing of medicaltreatment health care in an emergency case in which themedical treatment health care is required because (1) suchtreatment the health care is required for the alleviation ofsevere pain or (2) the patient has a medical condition whichthat, if not immediately diagnosed and treated, will lead toserious disability or death.

(c) Nothing in this part supersedes the right that any personmay have under existing law to make health care decisions onbehalf of a patient, or affects the decisionmaking process of ahealth care institution.

Comment. Subdivisions (a) and (b) of Section 3210 are amended touse the terminology of Section 3200. See Section 3200 Comment. Othertechnical, nonsubstantive changes are also made. The second clauseadded to subdivision (a) continues former subdivision (f) of Section 3201without substantive change. The erroneous reference to “this chapter” inthe former provision is corrected.

Subdivision (c) continues former subdivision (e) of Section 3201, withrevisions reflecting the replacement of Health and Safety Code Section1418.8 with Probate Code Sections 4720-4726 (surrogate committee).Subdivision (c) thus applies to all health care institutions, as defined inSection 3200(c), not just long-term health care facilities, as defined in


former Health and Safety Code Section 1418.8(b). Other technical,nonsubstantive changes are also made.

Prob. Code § 3211 (amended). Limitations on part


3211. (a) No person may be placed in a mental healthtreatment facility under the provisions of this part.

(b) No experimental drug as defined in Section 111515 ofthe Health and Safety Code may be prescribed for oradministered to any person under this part.

(c) No convulsive treatment as defined in Section 5325 ofthe Welfare and Institutions Code may be performed on anyperson under this part.

(d) No person may be sterilized under this part.(e) The provisions of this part are subject to any of the

following instruments if a valid and effective: advance healthcare directive under the Health Care Decisions Law, Division4.7 (commencing with Section 4600).

(1) A directive of the patient under Chapter 3.9(commencing with Section 7185) of Part 1 of Division 7 ofthe Health and Safety Code (Natural Death Act).

(2) A power of attorney for health care, whether or not adurable power of attorney.

Comment. Subdivision (e) of Section 3211 is amended to use theinclusive term “advance health care directive” used in the Health CareDecisions Law. This continues the substance of former law, sincedeclarations under the former Natural Death Act and powers of attorneyfor health care are types of advance directives. See Section 4605 &Comment. Also covered by this language are “individual health careinstructions.” See Section 4623 & Comment.

Prob. Code § 3212 (added). Choice of treatment by spiritual means

SEC. ____. Section 3212 is added to the Probate Code, toread:


3212. Nothing in this part shall be construed to supersede orimpair the right of any individual to choose treatment byspiritual means in lieu of medical treatment, nor shall anyindividual choosing treatment by spiritual means, inaccordance with the tenets and practices of that individual’sestablished religious tradition, be required to submit tomedical testing of any kind pursuant to a determination ofcapacity.

Comment. Section 3212 continues former subdivision (g) of Section3201 without substantive change. The former reference to “competency”has been changed to “capacity” to conform to the terminology of this partand related statutes. See, e.g., Section 3201 (capacity determination).

Prob. Code § 3722 (technical amendment). Effect of dissolution,annulment, or legal separation on power of attorney involvingfederal absentees


3722. If after the absentee executes a power of attorney, theprincipal’s spouse who is the attorney-in-fact commences aproceeding for dissolution, annulment, or legal separation, ora legal separation is ordered, the attorney-in-fact’s authority isrevoked. This section is in addition to the provisions ofSection Sections 4154 and 4697.

Comment. Section 3722 is amended to refer to a correspondingsection concerning advance health care directives.

See also Sections 1403 (“absentee” defined), 4014 (“attorney-in-fact”defined), 4022 (“power of attorney” defined).

Prob. Code § 4050 (amended). Types of powers of attorney governedby this division


4050. (a) This division applies to the following:(1) Durable powers of attorney, other than powers of

attorney for health care governed by Division 4.7(commencing with Section 4600).


(2) Statutory form powers of attorney under Part 3(commencing with Section 4400).

(3) Durable powers of attorney for health care under Part 4(commencing with Section 4600).

(4) Any other power of attorney that incorporates or refersto this division or the provisions of this division.

(b) This division does not apply to the following:(1) A power of attorney to the extent that the authority of

the attorney-in-fact is coupled with an interest in the subjectof the power of attorney.

(2) Reciprocal or interinsurance exchanges and theircontracts, subscribers, attorneys-in-fact, agents, andrepresentatives.

(3) A proxy given by an attorney-in-fact to another personto exercise voting rights.

(c) This division is not intended to affect the validity of anyinstrument or arrangement that is not described in subdivision(a).

Comment. Section 4050 is amended to reflect the revision of the lawrelating to powers of attorney for health care. See Section 4600 et seq.(Health Care Decisions Law). Division 4.5 no longer governs powers ofattorney for health care.

Revised 1994 Comment. Section 4050 describes the types ofinstruments that are subject to the Power of Attorney Law. If a section inthis division refers to a “power of attorney,” it generally refers to adurable power of attorney, but may, under certain circumstances, alsoapply to a nondurable power of attorney. For example, a statutory formpower of attorney may be durable or nondurable. See Sections 4401,4404. A nondurable power may incorporate provisions of this division,thereby becoming subject to its provisions as provided in Section4050(a)(4).

Subdivision (b) makes clear that certain specialized types of power ofattorney are not subject to the Power of Attorney Law. This list is notintended to be exclusive. See subdivision (c). Subdivision (b)(1)recognizes the special rule applicable to a power coupled with an interestin the subject of a power of attorney provided in Civil Code Section2356(a). Subdivision (b)(2) continues the substance of the limitation informer Civil Code Section 2420(b) and broadens it to apply to the entire


Power of Attorney Law. See Ins. Code § 1280 et seq. For the rulesapplicable to proxy voting in business corporations, see Corp. Code §705. For other statutes dealing with proxies, see Corp. Code §§ 178, 702,5069, 5613, 7613, 9417, 12405, 13242; Fin. Code §§ 5701, 5702, 5710,6005. See also Civ. Code § 2356(e) (proxy under general agency rules).

Subdivision (c) makes clear that this division does not affect thevalidity of other agencies and powers of attorney. The Power of AttorneyLaw thus does not apply to other specialized agencies, such as real estateagents under Civil Code Sections 2373-2382. As a corollary, aninstrument denominated a power of attorney that does not satisfy theexecution requirements for a power of attorney under this division maybe valid under general agency law or other principles.

See also Sections 4014 (“attorney-in-fact” defined), 4018 (“durablepower of attorney” defined), 4022 (“power of attorney” defined).

Prob. Code § 4100 (amended). Application of part


4100. This part applies to all powers of attorney under thisdivision, subject to any special rules applicable to statutoryform powers of attorney under Part 3 (commencing withSection 4400) or durable powers of attorney for health careunder Part 4 (commencing with Section 4600).

Comment. Section 4100 is amended to delete a reference to powers ofattorney for health care, which are governed by Division 4.7(commencing with Section 4600) (Health Care Decisions Law). See alsoSection 4050 (types of powers of attorney governed by this division).

Prob. Code § 4121 (amended). Formalities for executing a power ofattorney


4121. A power of attorney is legally sufficient if all of thefollowing requirements are satisfied:

(a) The power of attorney contains the date of its execution.(b) The power of attorney is signed either (1) by the

principal or (2) in the principal’s name by some other person


another adult in the principal’s presence and at the principal’sdirection.

(c) The power of attorney is either (1) acknowledged beforea notary public or (2) signed by at least two witnesses whosatisfy the requirements of Section 4122.

Comment. Subdivision (b) of Section 4121 is amended to make clearthat the person signing at the principal’s direction must be an adult. Thisis consistent with the language of Section 4680 (formalities for executingpower of attorney for health care).

Prob. Code § 4122 (amended). Requirements for witnesses


4122. If the power of attorney is signed by witnesses, asprovided in Section 4121, the following requirements shall besatisfied:

(a) The witnesses shall be adults.(b) The attorney-in-fact may not act as a witness.(c) Each witness signing the power of attorney shall witness

either the signing of the instrument by the principal or theprincipal’s acknowledgment of the signature or the power ofattorney.

(d) In the case of a durable power of attorney for healthcare, the additional requirements of Section 4701.

Comment. Section 4122 is amended to delete a reference to powers ofattorney for health care, which are governed by Division 4.7(commencing with Section 4600) (Health Care Decisions Law).

This section is not subject to limitation in the power of attorney. SeeSection 4101. See also Sections 4014 (“attorney-in-fact” defined), 4022(“power of attorney” defined), 4026 (“principal” defined).

Prob. Code § 4123 (amended). Permissible purposes


4123. (a) In a power of attorney, a principal may grantauthority to an attorney-in-fact to act on the principal’s behalf


with respect to all lawful subjects and purposes or withrespect to one or more express subjects or purposes. Theattorney-in-fact may be granted authority with regard to theprincipal’s property, personal care, health care, or any othermatter.

(b) With regard to property matters, a power of attorneymay grant authority to make decisions concerning all or partof the principal’s real and personal property, whether ownedby the principal at the time of the execution of the power ofattorney or thereafter acquired or whether located in this stateor elsewhere, without the need for a description of each itemor parcel of property.

(c) With regard to personal care, a power of attorney maygrant authority to make decisions relating to the personal careof the principal, including, but not limited to, determiningwhere the principal will live, providing meals, hiringhousehold employees, providing transportation, handlingmail, and arranging recreation and entertainment.

(d) With regard to health care, a power of attorney maygrant authority to make health care decisions, both before andafter the death of the principal, as provided in Part 4(commencing with Section 4600).

Comment. Section 4123 is amended to delete subdivision (d), whichreferred to powers of attorney for health care that are now governed byDivision 4.7 (commencing with Section 4600) (Health Care DecisionsLaw). See Section 4050 (types of powers of attorney governed by thisdivision).

Revised 1994 Comment. Subdivision (a) of Section 4123 is new andis consistent with the general agency rules in Civil Code Sections 2304and 2305. For provisions concerning the duties and powers of anattorney-in-fact, see Sections 4230-4266. See also Sections 4014(“attorney-in-fact” defined), 4022 (“power of attorney” defined), 4026(“principal” defined).

Subdivision (b) continues former Civil Code Section 2513 withoutsubstantive change. This subdivision makes clear that a power ofattorney may by its terms apply to all real property of the principal,including after-acquired property, without the need for a specific


description of the real property to which the power applies. This sectionis consistent with Section 4464 (after-acquired property under statutoryform power of attorney).

Subdivision (c) is new and acknowledges the existing practice ofproviding authority to make personal care decisions in durable powers ofattorney. For a comparable provision in the Health Care Decisions Law,see Section 4671.

Prob. Code § 4128 (amended). Warning statement in durable powerof attorney


4128. (a) Subject to subdivision (b), a printed form of adurable power of attorney that is sold or otherwise distributedin this state for use by a person who does not have the adviceof legal counsel shall contain, in not less than 10-pointboldface type or a reasonable equivalent thereof, thefollowing warning statement:

NOTICE TO PERSON EXECUTING DURABLEPOWER OF ATTORNEY

A durable power of attorney is an important legaldocument. By signing the durable power of attorney, you areauthorizing another person to act for you, the principal.Before you sign this durable power of attorney, you shouldknow these important facts:

Your agent (attorney-in-fact) has no duty to act unless youand your agent agree otherwise in writing.

This document gives your agent the powers to manage,dispose of, sell, and convey your real and personal property,and to use your property as security if your agent borrowsmoney on your behalf.

Your agent will have the right to receive reasonablepayment for services provided under this durable power of


attorney unless you provide otherwise in this power ofattorney.

The powers you give your agent will continue to exist foryour entire lifetime, unless you state that the durable power ofattorney will last for a shorter period of time or unless youotherwise terminate the durable power of attorney. Thepowers you give your agent in this durable power of attorneywill continue to exist even if you can no longer make yourown decisions respecting the management of your property.

You can amend or change this durable power of attorneyonly by executing a new durable power of attorney or byexecuting an amendment through the same formalities as anoriginal. You have the right to revoke or terminate thisdurable power of attorney at any time, so long as you arecompetent.

This durable power of attorney must be dated and must beacknowledged before a notary public or signed by twowitnesses. If it is signed by two witnesses, they must witnesseither (1) the signing of the power of attorney or (2) theprincipal’s signing or acknowledgment of his or her signature.A durable power of attorney that may affect real propertyshould be acknowledged before a notary public so that it mayeasily be recorded.

You should read this durable power of attorney carefully.When effective, this durable power of attorney will give youragent the right to deal with property that you now have ormight acquire in the future. The durable power of attorney isimportant to you. If you do not understand the durable powerof attorney, or any provision of it, then you should obtain theassistance of an attorney or other qualified person.

(b) Nothing in subdivision (a) invalidates any transaction inwhich a third person relied in good faith on the authoritycreated by the durable power of attorney.

(c) This section does not apply to the following:


(1) A a statutory form power of attorney under Part 3(commencing with Section 4400).

(2) A durable power of attorney for health care under Part 4(commencing with Section 4600).

Comment. Subdivision (c) of Section 4128 is amended to delete areference to powers of attorney for health care, which are governed byDivision 4.7 (commencing with Section 4600) (Health Care DecisionsLaw). This is a technical, nonsubstantive change.

Revised 1994 Comment. The warning statement in subdivision (a) ofSection 4128 replaces the statement provided in former Civil CodeSection 2510(b). Subdivision (b) restates former Civil Code Section2510(c) without substantive change. Subdivision (c) restates former CivilCode Section 2510(a) without substantive change, but the reference tostatutory short form powers of attorney under former Civil Code Section2450 is omitted as obsolete. This section is not subject to limitation in thepower of attorney. See Section 4101(b).

Other provisions prescribe the contents of the warning statements forparticular types of durable powers of attorney. See Section 4401(statutory form power of attorney).

Section 4102 permits a printed form to be used after January 1, 1995, ifthe form complies with prior law. A form printed after January 1, 1986,may be sold or otherwise distributed in this state only if it complies withthe requirements of Section 4128 (or its predecessor, former Civil CodeSection 2510). See Section 4102(b).

See also Sections 4014 (“attorney-in-fact” defined), 4018 (“durablepower of attorney” defined), 4026 (“principal” defined), 4034 (“thirdperson” defined).

Prob. Code § 4203 (amended). Successor attorneys-in-fact


4203. (a) A principal may designate one or more successorattorneys-in-fact to act if the authority of a predecessorattorney-in-fact terminates.

(b) The principal may grant authority to another person,designated by name, by office, or by function, including theinitial and any successor attorneys-in-fact, to designate at anytime one or more successor attorneys-in-fact. This subdivision


does not apply to a durable power of attorney for health careunder Part 4 (commencing with Section 4600).

(c) A successor attorney-in-fact is not liable for the actionsof the predecessor attorney-in-fact.

Comment. Section 4203 is amended to delete a reference to powers ofattorney for health care, which are governed by Division 4.7(commencing with Section 4600) (Health Care Decisions Law). This is atechnical, nonsubstantive change.

Prob. Code § 4206 (amended). Relation of attorney-in-fact to court-appointed fiduciary


4206. (a) If, following execution of a durable power ofattorney, a court of the principal’s domicile appoints aconservator of the estate, guardian of the estate, or otherfiduciary charged with the management of all of theprincipal’s property or all of the principal’s property exceptspecified exclusions, the attorney-in-fact is accountable to thefiduciary as well as to the principal. Except as provided insubdivision (b), the fiduciary has the same power to revoke oramend the durable power of attorney that the principal wouldhave had if not incapacitated, subject to any required courtapproval.

(b) If a conservator of the estate is appointed by a court ofthis state, the conservator can revoke or amend the durablepower of attorney only if the court in which theconservatorship proceeding is pending has first made an orderauthorizing or requiring the fiduciary to modify or revoke thedurable power of attorney and the modification or revocationis in accord with the order.

(c) This section does not apply to a durable power ofattorney for health care.

(d) This section is not subject to limitation in the power ofattorney.


Comment. Section 4206 is amended to delete a reference to powers ofattorney for health care, which are governed by Division 4.7(commencing with Section 4600) (Health Care Decisions Law). This is atechnical, nonsubstantive change.

Prob. Code § 4260 (amended). Limitation on article


4260. This article does not apply to the following:(a) Statutory statutory form powers of attorney under Part 3

(commencing with Section 4400).(b) Durable powers of attorney for health care under Part 4

(commencing with Section 4600).Comment. Section 4260 is amended to delete a reference to powers of

attorney for health care, which are governed by Division 4.7(commencing with Section 4600) (Health Care Decisions Law). This is atechnical, nonsubstantive change.

Prob. Code § 4265 (amended). Excluded authority


4265. A power of attorney may not authorize an attorney-in-fact to perform any of the following acts:

(a) Make make, publish, declare, amend, or revoke theprincipal’s will.

(b) Consent to any action under a durable power of attorneyfor health care forbidden by Section 4722.

Comment. Section 4265 is amended to delete a reference to powers ofattorney for health care, which are governed by Division 4.7(commencing with Section 4600) (Health Care Decisions Law). SeeSection 4050 (scope of division).

Section 4265 is consistent with the general agency rule in Civil CodeSection 2304. See also Sections 4014 (“attorney-in-fact” defined), 4022(“power of attorney” defined), 4026 (“principal” defined).


Prob. Code §§ 4500-4545 (added). Judicial proceedings concerningpowers of attorney

SEC. ____. Part 4 (commencing with Section 4500) isadded to Division 4.5 of the Probate Code, to read:

PAR T 4 . JUDIC IAL PR OC E E DINGSC ONC E R NING POWE R S OF AT T OR NE Y


§ 4500. Power of attorney freely exercisable

4500. A power of attorney is exercisable free of judicialintervention, subject to this part.

Comment. Section 4500 continues former Section 4900 withoutchange. See also Section 4022 (“power of attorney” defined).

§ 4501. Cumulative remedies

4501. The remedies provided in this part are cumulative andnot exclusive of any other remedies provided by law.


§ 4502. Effect of provision in power of attorney attempting to limitright to petition

4502. Except as provided in Section 4503, this part is notsubject to limitation in the power of attorney.

Comment. Section 4502 continues former Section 4902 withoutchange. See also Sections 4022 (“power of attorney” defined), 4101(b)(general rule on limitations provided in power of attorney).

§ 4503. Limitations on right to petition

4503. (a) Subject to subdivision (b), a power of attorneymay expressly eliminate the authority of a person listed inSection 4540 to petition the court for any one or more of thepurposes enumerated in Section 4541 if both of the followingrequirements are satisfied:


(1) The power of attorney is executed by the principal at atime when the principal has the advice of a lawyer authorizedto practice law in the state where the power of attorney isexecuted.

(2) The principal’s lawyer signs a certificate stating insubstance:

“I am a lawyer authorized to practice law in the state wherethis power of attorney was executed, and the principal wasmy client at the time this power of attorney was executed. Ihave advised my client concerning his or her rights inconnection with this power of attorney and the applicable lawand the consequences of signing or not signing this power ofattorney, and my client, after being so advised, has executedthis power of attorney.”

(b) A power of attorney may not limit the authority of theattorney-in-fact, the principal, the conservator of the person orestate of the principal, or the public guardian to petition underthis part.

Comment. Subdivision (a) of Section 4503 continues former Section4903(a) without change, except that the reference to the sectiongoverning petitions relating to powers of attorney for health care (formerSection 4942) is omitted. Powers of attorney for health care are governedby Division 4.7 (commencing with Section 4600).

Subdivision (a) makes clear that a power of attorney may limit theapplicability of this part only if it is executed with the advice andapproval of the principal’s counsel. This limitation is designed to ensurethat the execution of a power of attorney that restricts the remedies ofthis part is accomplished knowingly by the principal. The inclusion of aprovision in the power of attorney making this part inapplicable does notaffect the right to resort to any judicial remedies that may otherwise beavailable. See Section 4501.

Subdivision (b) continues the part of former Section 4903(b) relatingto non-health care powers of attorney without substantive change, exceptthat the reference to the conservator of the person of the principal isadded for consistency with Section 4540(e).

See also Sections 4014 (“attorney-in-fact” defined), 4022 (“power ofattorney” defined), 4026 (“principal” defined).


§ 4504. Jury trial

4504. There is no right to a jury trial in proceedings underthis division.

Comment. Section 4504 continues former Section 4904 withoutchange. This section is consistent with the rule applicable to otherfiduciaries. See Prob. Code §§ 1452 (guardianships andconservatorships), 7200 (decedents’ estates), 17006 (trusts).

§ 4505. Application of general procedural rules

4505. Except as otherwise provided in this division, thegeneral provisions in Division 3 (commencing with Section1000) apply to proceedings under this division.

Comment. Section 4505 continues former Section 4905 withoutchange, and provides a cross reference to the general procedural rulesthat apply to this division. See, e.g., Sections 1003 (guardian ad litem),1021 (verification required), 1041 (clerk to set matters for hearing), 1046(hearing and orders), 1203 (order shortening time for notice), 1215-1216(service), 1260 (proof of service).

CHAPTER 2. JURISDICTION AND VENUE

§ 4520. Jurisdiction and authority of court or judge

4520. (a) The superior court has jurisdiction in proceedingsunder this division.

(b) The court in proceedings under this division is a court ofgeneral jurisdiction and the court, or a judge of the court, hasthe same power and authority with respect to the proceedingsas otherwise provided by law for a superior court, or a judgeof the superior court, including, but not limited to, the mattersauthorized by Section 128 of the Code of Civil Procedure.

Comment. Section 4520 continues former Section 4920 withoutchange, and is comparable to Section 7050 governing the jurisdiction andauthority of the court in proceedings concerning administration ofdecedents’ estates. See Section 7050 Comment.


§ 4521. Basis of jurisdiction

4521. The court may exercise jurisdiction in proceedingsunder this division on any basis permitted by Section 410.10of the Code of Civil Procedure.

Comment. Section 4521 continues former Section 4921 withoutchange, and is comparable to Section 17004 (jurisdiction under TrustLaw). This section recognizes that the court, in proceedings relating topowers of attorney under this division, may exercise jurisdiction on anybasis that is not inconsistent with the California or United StatesConstitutions, as provided in Code of Civil Procedure Section 410.10.See generally Judicial Council Comment to Code Civ. Proc. § 410.10;Prob. Code § 17004 Comment (basis of jurisdiction under Trust Law).

§ 4522. Jurisdiction over attorney-in-fact

4522. Without limiting Section 4521, a person who acts asan attorney-in-fact under a power of attorney governed by thisdivision is subject to personal jurisdiction in this state withrespect to matters relating to acts and transactions of theattorney-in-fact performed in this state or affecting propertyor a principal in this state.

Comment. Section 4522 continues former Section 4922 withoutchange, and is comparable to Sections 3902(b) (jurisdiction overcustodian under Uniform Transfers to Minors Act) and 17003(a)(jurisdiction over trustee). This section is intended to facilitate exerciseof the court’s power under this part when the court’s jurisdiction isproperly invoked. As recognized by the introductory clause,constitutional limitations on assertion of jurisdiction apply to the exerciseof jurisdiction under this section. Consequently, appropriate notice mustbe given to an attorney-in-fact as a condition of personal jurisdiction. Cf.Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950).


§ 4523. Venue

4523. The proper county for commencement of aproceeding under this division shall be determined in thefollowing order of priority:

(a) The county in which the principal resides.


(b) The county in which the attorney-in-fact resides.(c) A county in which property subject to the power of

attorney is located.(d) Any other county that is in the principal’s best interest.Comment. Section 4523 continues former Section 4923 without

change. This section is drawn from the rules applicable to guardianshipsand conservatorships. See Sections 2201-2202. See also Section 4053(durable powers of attorney under law of another jurisdiction).

CHAPTER 3. PETITIONS, ORDERS, APPEALS

§ 4540. Petitioners

4540. Subject to Section 4503, a petition may be filed underthis part by any of the following persons:

(a) The attorney-in-fact.(b) The principal.(c) The spouse of the principal.(d) A relative of the principal.(e) The conservator of the person or estate of the principal.(f) The court investigator, described in Section 1454, of the

county where the power of attorney was executed or wherethe principal resides.

(g) The public guardian of the county where the power ofattorney was executed or where the principal resides.

(h) The personal representative or trustee of the principal’sestate.

(i) The principal’s successor in interest.(j) A person who is requested in writing by an attorney-in-

fact to take action.(k) Any other interested person or friend of the principal.Comment. Section 4540 continues former Section 4940 without

change, except that the reference to the treating health care provider informer subdivision (h) is omitted. Powers of attorney for health care aregoverned by Division 4.7 (commencing with Section 4600). Thepurposes for which a person may file a petition under this part are limitedby other rules. See Sections 4502 (effect of provision in power ofattorney attempting to limit right to petition), 4503 (limitations on right


to petition); see also Section 4501 (other remedies not affected). See alsothe comparable rules governing petitioners for appointment of aconservator under Section 1820.


§ 4541. Petition as to powers of attorney

4541. A petition may be filed under this part for any one ormore of the following purposes:

(a) Determining whether the power of attorney is in effector has terminated.

(b) Passing on the acts or proposed acts of the attorney-in-fact, including approval of authority to disobey the principal’sinstructions pursuant to subdivision (b) of Section 4234.

(c) Compelling the attorney-in-fact to submit the attorney-in-fact’s accounts or report the attorney-in-fact’s acts asattorney-in-fact to the principal, the spouse of the principal,the conservator of the person or the estate of the principal, orto any other person required by the court in its discretion, ifthe attorney-in-fact has failed to submit an accounting orreport within 60 days after written request from the personfiling the petition.

(d) Declaring that the authority of the attorney-in-fact isrevoked on a determination by the court of all of thefollowing:

(1) The attorney-in-fact has violated or is unfit to performthe fiduciary duties under the power of attorney.

(2) At the time of the determination by the court, theprincipal lacks the capacity to give or to revoke a power ofattorney.

(3) The revocation of the attorney-in-fact’s authority is inthe best interest of the principal or the principal’s estate.

(e) Approving the resignation of the attorney-in-fact:(1) If the attorney-in-fact is subject to a duty to act under

Section 4230, the court may approve the resignation, subject


to any orders the court determines are necessary to protect theprincipal’s interests.

(2) If the attorney-in-fact is not subject to a duty to actunder Section 4230, the court shall approve the resignation,subject to the court’s discretion to require the attorney-in-factto give notice to other interested persons.

(f) Compelling a third person to honor the authority of anattorney-in-fact.

Comment. Section 4541 continues former Section 4941 withoutchange, except that the reference to powers of attorney for health care inthe introductory paragraph of former law is omitted. Powers of attorneyfor health care are governed by Division 4.7 (commencing with Section4600). This section applies to petitions concerning both durable andnondurable powers of attorney. See Sections 4022 (“power of attorney”defined), 4050 (scope of division).

Subdivision (a) makes clear that a petition may be filed to determinewhether the power of attorney was ever effective, thus permitting, forexample, a determination that the power of attorney was invalid whenexecuted because its execution was induced by fraud. See also Section4201 (unqualified attorney-in-fact).

The authority to petition to disobey the principal’s instructions insubdivision (b) is new. This is a limitation on the general agency rule inCivil Code Section 2320. See Section 4234 (duty to follow instructions)& Comment.

Subdivision (d) requires a court determination that the principal hasbecome incapacitated before the court is authorized to declare the powerof attorney terminated because the attorney-in-fact has violated or is unfitto perform the fiduciary duties under the power of attorney.

Subdivision (e) provides a procedure for accepting the attorney-in-fact’s resignation. The court’s discretion in this type of case depends onwhether the attorney-in-fact is subject to any duty to act under Section4230, as in the situation where the attorney-in-fact has agreed in writingto act or is involved in an ongoing transaction. Under subdivision (e)(1)the court may make any necessary protective order. Under subdivision(e)(2), the court’s discretion is limited to requiring that notice be given toothers who may be expected to look out for the principal’s interests, suchas a public guardian or a relative. In addition, the attorney-in-fact isrequired to comply with the statutory duties on termination of authority.See Section 4238. The availability of this procedure is not intended toimply that an attorney-in-fact must or should petition for judicial


acceptance of a resignation where the attorney-in-fact is not subject to aduty to act.

Subdivision (f) provides a remedy to achieve compliance with thepower of attorney through recognition of the attorney-in-fact’s authority.This remedy is also available to compel disclosure of information underSection 4235 (consultation and disclosure). See Section 4300 et seq.(relations with third persons).

A power of attorney may limit the authority to petition under this part.See Sections 4502 (effect of provision in power of attorney attempting tolimit right to petition), 4503 (limitations on right to petition).


§ 4542. Commencement of proceeding

4542. A proceeding under this part is commenced by filinga petition stating facts showing that the petition is authorizedunder this part, the grounds of the petition, and, if known tothe petitioner, the terms of the power of attorney.

Comment. Section 4542 continues former Section 4943 withoutchange For a comparable provision, see Section 17201 (commencementof proceeding under Trust Law). A petition is required to be verified. SeeSection 1021.

See also Section 4022 (“power of attorney” defined).

§ 4543. Dismissal of petition

4543. The court may dismiss a petition if it appears that theproceeding is not reasonably necessary for the protection ofthe interests of the principal or the principal’s estate and shallstay or dismiss the proceeding in whole or in part whenrequired by Section 410.30 of the Code of Civil Procedure.

Comment. Section 4543 continues former Section 4944 withoutchange. Under former Section 4944, the dismissal standard was revisedto permit dismissal when the proceeding is not “reasonably necessary,”rather than “necessary” as under the prior section (Civil Code Section2416). Under this section, the court has authority to stay or dismiss aproceeding in this state if, in the interest of substantial justice, theproceeding should be heard in a forum outside this state. See Code Civ.Proc. § 410.30.

See also Section 4026 (“principal” defined).


§ 4544. Notice of hearing

4544. (a) Subject to subdivision (b), at least 15 days beforethe time set for hearing, the petitioner shall serve notice of thetime and place of the hearing, together with a copy of thepetition, on the following:

(1) The attorney-in-fact if not the petitioner.(2) The principal if not the petitioner.(b) In the case of a petition to compel a third person to

honor the authority of an attorney-in-fact, notice of the timeand place of the hearing, together with a copy of the petition,shall be served on the third person in the manner provided inChapter 4 (commencing with Section 413.10) of Title 5 ofPart 2 of the Code of Civil Procedure.

Comment. Subdivision (a) of Section 4544, pertaining to internalaffairs of the power of attorney, continues former Section 4945(a)without change.

Subdivision (b) continues former Section 4945(b) without change, andprovides a special rule applicable to service of notice in proceedingsinvolving third persons, i.e., not internal affairs of the power of attorney.See Section 4541(f) (petition to compel third person to honor attorney-in-fact’s authority).

See also Sections 4014 (“attorney-in-fact” defined), 4026 (“principal”defined).

§ 4545. Award of attorney’s fees

4545. In a proceeding under this part commenced by thefiling of a petition by a person other than the attorney-in-fact,the court may in its discretion award reasonable attorney’sfees to one of the following:

(a) The attorney-in-fact, if the court determines that theproceeding was commenced without any reasonable cause.

(b) The person commencing the proceeding, if the courtdetermines that the attorney-in-fact has clearly violated thefiduciary duties under the power of attorney or has failedwithout any reasonable cause or justification to submitaccounts or report acts to the principal or conservator of the


estate or of the person, as the case may be, after writtenrequest from the principal or conservator.



Prob. Code §§ 4600-4806 (repealed). Durable powers of attorney forhealth care

SEC. ____. Part 4 (commencing with Section 4600) ofDivision 4.5 of the Probate Code is repealed.

Comment. Former Sections 4600-4806 are superseded by relevantparts of the Health Care Decisions Law, Division 4.7 (commencing withSection 4600). See former Section 4600-4806 Comments.

§ 4600 (repealed). Application of definitionsComment. Former Section 4600 is continued in Section 4603 without

substantive change.

§ 4603 (repealed). Community care facilityComment. Former Section 4603 is continued in Section 4611 without

substantive change.

§ 4606 (repealed). Durable power of attorney for health careComment. Former Section 4606 is superseded by Section 4629

(“power of attorney for health care” defined). See Section 4629Comment. The durability of powers of attorney for health care isimplicit, so the term has been shortened in the new law to “power ofattorney for health care.”

§ 4609 (repealed). Health careComment. The first part of former Section 4609 is continued in

Section 4615 without substantive change. The language relating todecisions affecting the principal after death is not continued in thedefinition, but the authority is continued in Section 4683(b) withoutsubstantive change.

§ 4612 (repealed). Health care decisionComment. Former Section 4612 is superseded by Section 4617. See

Section 4617 Comment.


§ 4615 (repealed). Health care providerComment. Former Section 4615 is continued in Section 4621 without

substantive change.

§ 4618 (repealed). Residential care facility for the elderlyComment. Former Section 4618 is continued in Section 4637 without

substantive change.

§ 4621 (repealed). Statutory form durable power of attorney forhealth care

Comment. Former Section 4621 is not continued. For the replacementstatutory form, see Section 4701 (optional form of advance health caredirective).

§ 4650 (repealed). Application of chapterComment. Former Section 4650 is superseded by Section 4671 and

related authority in the Health Care Decisions Law. For the application ofthe new law to existing advance health care directives, see Section 4665& Comment.

§ 4651 (repealed). Form of durable power of attorney for health careafter January 1, 1995

Comment. Former Section 4651 is not continued. See Section 4701(optional form of advance health care directive).

§ 4652 (repealed). Other authority not affectedComment. Subdivision (a) of former Section 4652 is superseded by

Sections 4685 (agent’s priority) and 4687 (other authority of personnamed as agent not affected).

Subdivision (b) is continued in Section 4651(b)(2) (emergencytreatment) without substantive change.

§ 4653 (repealed). Validity of durable power of attorney for healthcare executed elsewhere

Comment. Former Section 4653 is continued in Section 4674(a)without substantive change.


§ 4654 (repealed). Durable power of attorney for health care subjectto former 7-year limit

Comment. Former Section 4654 is not continued. See Section 4665(application of Health Care Decisions Law to existing advancedirectives).

§ 4700 (repealed). Requirements for durable power of attorney forhealth care

Comment. Former Section 4700 is superseded by Section 4671 andrelated provisions. See Section 4671 Comment.

§ 4701 (repealed). Witnesses of durable power of attorney for healthcare

Comment. Former Section 4701 is continued in Section 4673(a)-(c)without substantive change, but the witnessing rules apply only topatients in skilled nursing facilities.

§ 4702 (repealed). Limitations on who may be attorney-in-factComment. Former Section 4702 is continued in Section 4659(a)-(c)

without substantive change. See Section 4659 Comment.

§ 4703 (repealed). Printed form of durable power of attorney forhealth care

Comment. Former Section 4703 is not continued. See Section 4701(optional form of advance health care directive).

§ 4704 (repealed). Warnings not on printed formComment. Former Section 4704 is not continued. See Section 4701

(optional form of advance health care directive).

§ 4720 (repealed). Attorney-in-fact’s authority to make health caredecisions

Comment. Subdivision (a) of former Section 4720 is continued inSections 4682 (when agent’s authority effective) and 4685 (agent’spriority) without substantive change.

Subdivision (b) is continued in Section 4683 without substantivechange.

Subdivision (c) is continued in Section 4684 without substantivechange.

Subdivision (d) is continued in Section 4687 without substantivechange.


§ 4721 (repealed). Availability of medical information to attorney-in-fact

Comment. Former Section 4721 is continued in Section 4676 withoutsubstantive change.

§ 4722 (repealed). Limitations on attorney-in-fact’s authorityComment. Former Section 4722 is continued in Section 4652 without

substantive change.

§ 4723 (repealed). Unauthorized acts and omissionsComment. Former Section 4723 is continued in Section 4653 without

substantive change.

§ 4724 (repealed). Principal’s objectionsComment. Former Section 4724 is superseded by Section 4659

(revocation of advance directive).

§ 4725 (repealed). Restriction on execution of durable power ofattorney for health care as condition for admission, treatment, orinsurance


§ 4726 (repealed). Alteration or forging, or concealment orwithholding knowledge of revocation of durable power ofattorney for health care


§ 4727 (repealed). Revocation of durable power of attorney forhealth care

Comment. Subdivision (a) of former Section 4727 is superseded bySection 4695(a) (revocation of advance health care directive).

Subdivision (b) is continued in Section 4731 (duty of supervisinghealth care provider to record relevant information) without substantivechange.

Subdivision (c) is continued in Section 4657 (presumption of capacity)without substantive change.

Subdivision (d) is superseded by Section 4698 (effect of later advancedirective on earlier advance directive).


Subdivision (e) is continued in Section 4697 (effect of dissolution orannulment) without substantive change.

Subdivision (f) is superseded by Section 4740 (immunities of healthcare provider and institution). See Section 4740 Comment.

§ 4750 (repealed). Immunities of health care providerComment. Former Section 4750 is superseded by Section 4740. See

Section 4740 Comment.

§ 4751 (repealed). Convincing evidence of identity of principalComment. Former Section 4751 is continued in Section 4673(d)-(e)

without substantive change. The scope of the new provision is different,however. See Section 4673 Comment.

§ 4752 (repealed). Presumption concerning power executed in otherjurisdiction

Comment. Former Section 4752 is continued in Section 4674(b)without substantive change.

§ 4753 (repealed). Request to forgo resuscitative measuresComment. Former Section 4753 is continued in Part 4 (commencing

with Section 4780) of Division 4.7 without substantive change.Subdivision (a) is continued in Section 4782 without substantive change.

Subdivision (b) is continued in Section 4780 without substantivechange.

Subdivisions (c) and (d) are continued in Section 4783 withoutsubstantive change.

Subdivision (e) is continued in Section 4784 without change.Subdivision (f) is continued in Section 4785 without substantive

change.Subdivision (g) is continued in Section 4781 without substantive

change.Subdivision (h) is continued in Section 4786 without substantive

change.

§ 4770 (repealed). Short titleComment. Former Section 4770 is not continued. The statutory form

durable power of attorney for health care is replaced by the optional formof an advance health care directive in Section 4701.


§ 4771 (repealed). Statutory form durable power of attorney forhealth care

Comment. The statutory form set out in former Section 4771 issuperseded by the optional advance health care directive form providedby Section 4701. See Section 4701 Comment. See also Section 4665(application of Health Care Decisions Law to existing advancedirectives).

§ 4772 (repealed). Warning or lawyer’s certificateComment. Former Section 4772 is not continued. See Section 4701

(optional advance directive form) & Comment.

§ 4773 (repealed). Formal requirementsComment. Former Section 4773 is not continued. For execution

requirements, see Section 4680. See also Sections 4700 (substantive rulesapplicable to form), 4701 (optional advance directive form) & Comment.

§ 4774 (repealed). Requirements for statutory formComment. Former Section 4774 is not continued. For execution

requirements, see Section 4680. See also Sections 4700 (substantive rulesapplicable to form), 4701 (optional advance directive form) & Comment.

§ 4775 (repealed). Use of forms valid under prior lawComment. Former Section 4775 is not continued. See Section 4665

(application of Health Care Decisions Law to existing advancedirectives).

§ 4776 (repealed). Language conferring general authorityComment. Former Section 4776 is not continued. See Section 4701

(optional advance directive form) & Comment.

§ 4777 (repealed). Effect of documents executed by attorney-in-factComment. Former Section 4777 is not continued. See Sections 4683

(scope of agent’s authority), 4701 (optional advance directive form) &Comment.

§ 4778 (repealed). Termination of authority, alternate attorney-in-fact

Comment. Former Section 4778 is not continued. See Section 4701(optional advance directive form) & Comment.


§ 4779 (repealed). Use of other formsComment. Former Section 4779 is superseded by Section 4700.

§ 4800 (repealed). Registry system established by Secretary of StateComment. Former Section 4800 is continued in new Section 4800

without substantive change. However, the registry provisions in Sections4800-4806 of former law are revised to permit registration of individualhealth care instructions, as well as powers of attorney for health care innew Sections 4800-4805. See new Section 4800 Comment.

§ 4801 (repealed). Identity and feesComment. Former Section 4801 is continued in new Section 4801

without change.

§ 4802 (repealed). NoticeComment. Former Section 4802 is continued in new Section 4802

without substantive change. See Section 4800 Comment.

§ 4804 (repealed). Effect of failure to registerComment. Former Section 4804 is continued in Section 4803 without

substantive change. See Section 4800 Comment.

§ 4805 (repealed). Effect of registration on revocation and validityComment. Former Section 4805 is continued in Section 4804 without


§ 4806 (repealed). Effect on health care providerComment. Former Section 4806 is continued in Section 4805 without


Prob. Code §§ 4900-4947 (repealed). Judicial proceedings concerningpowers of attorney

SEC. ____. Part 5 (commencing with Section 4900) ofDivision 4.5 of the Probate Code is repealed.

Comment. Sections 4900-4947 have been moved to a new Part 4(commencing with Section 4500) as part of the reorganization related toenactment of the Health Care Decisions Law, Division 4.7 (commencingwith Section 4600). With respect to powers of attorney for health care,this part of former law is replaced by a new Part 3 (commencing withSection 4750) in Division 4.7.


§ 4900 (repealed). Power of attorney freely exercisableComment. Former Section 4900 is continued in Sections 4500

(property powers) and 4750 (health care powers) without substantivechange.

§ 4901 (repealed). Cumulative remediesComment. Former Section 4901 is continued in Sections 4501


§ 4902 (repealed). Effect of provision in power of attorney limitingright to petition

Comment. Former Section 4902 is continued in Sections 4502(property powers) and 4752 (health care powers) without substantivechange.

§ 4903 (repealed). Limitations on right to petitionComment. Former Section 4903 is continued in Sections 4503


§ 4904 (repealed). Jury trialComment. Former Section 4904 is continued in Sections 4504


§ 4905 (repealed). Application of general procedural rulesComment. Former Section 4905 is continued in Sections 4505


§ 4920 (repealed). Jurisdiction and authority of court or judgeComment. Former Section 4920 is continued in Sections 4520


§ 4921 (repealed). Basis of jurisdictionComment. Former Section 4921 is continued in Sections 4521



§ 4922 (repealed). Jurisdiction over attorney-in-factComment. Former Section 4922 is continued in Sections 4522


§ 4923 (repealed). VenueComment. Former Section 4923 is continued in Sections 4523


§ 4940 (repealed). PetitionersComment. Former Section 4940 is continued in Section 4540 without

change, except that the reference to the treating health care provider insubdivision (h) is omitted. Powers of attorney for health care aregoverned by Division 4.7 (commencing with Section 4600). As to healthcare powers, the former section is continued in Section 4765, withseveral changes. See Section 4765 Comment.

§ 4941 (repealed). Petition as to powers of attorney other than forhealth care

Comment. As to property powers, former Section 4941 is continued inSection 4541 without change, except that the reference to powers ofattorney for health care in the introductory paragraph is omitted. Powersof attorney for health care are governed by Division 4.7 (commencingwith Section 4600).

§ 4942 (repealed). Petition as to durable power of attorney for healthcare

Comment. Former Section 4942 is continued in Section 4766 withseveral changes. See Section 4766 & Comment.

§ 4943 (repealed). Commencement of proceedingComment. Former Section 4943 is continued in Sections 4542


§ 4944 (repealed). Dismissal of petitionComment. Former Section 4944 is continued in Sections 4543



§ 4945 (repealed). Notice of hearingComment. Former Section 4945 is continued in Sections 4544


§ 4946 (repealed). Temporary health care orderComment. Former Section 4946 is continued in Section 4770 without

several changes. See Section 4770 Comment.

§ 4947 (repealed). Award of attorney’s feesComment. Former Section 4947 is continued in Sections 4545


WELFARE AND INSTITUTIONS CODE

Welf. & Inst. Code § 14110.8 (amended). Admission to nursingfacility

SEC. ____. Section 14110.8 of the Welfare and InstitutionsCode is amended to read:

14110.8. (a) For the purposes of this section:(1) “Facility” means a nursing facility.(2) “Patient” means a person who is a facility resident and a

Medi-Cal beneficiary and whose facility care is being paid forin whole or in part by Medi-Cal.

(3) “Agent” means a person who manages, uses, or controlsthose funds or assets that legally may be used to pay thepatient’s share of cost and other charges not paid for by theMedi-Cal program.

(4) “Responsible party” means a person other than thepatient or potential patient, who, by virtue of signing orcosigning an admissions agreement of a nursing facility,either together with, or on behalf of, a potential patient,becomes personally responsible or liable for payment of anyportion of the charges incurred by the patient while in thefacility. A person who signs or cosigns a facility’s admissionsagreement by virtue of being an agent under a power of


attorney for health care or an Attorney-in-Fact attorney-in-fact under a valid Durable Power of Attorney durable powerof attorney executed by the potential patient or, a conservatorof the person or of the estate of the potential patient, or arepresentative payee, is not a responsible party under thissection, and does not thereby assume personal responsibilityor liability for payment of any charges incurred by the patient,except to the extent that the person, or the patient’sconservator or representative payee is an agent as defined inparagraph (3).

(b) No facility may require or solicit, as a condition ofadmission into the facility, that a Medi-Cal beneficiary have aresponsible party sign or cosign the admissions agreement.No facility may accept or receive, as a condition of admissioninto the facility, the signature or cosignature of a responsibleparty for a Medi-Cal beneficiary.

(c) A facility may require, as a condition of admission,where a patient has an agent, that the patient’s agent sign orcosign the admissions agreement and agree to distribute to thefacility promptly when due, the share of cost and any othercharges not paid for by the Medi-Cal program which thepatient or his or her agent has agreed to pay. The financialobligation of the agent shall be limited to the amount of thepatient’s funds received but not distributed to the facility. Anew agent who did not sign or cosign the admissionsagreement shall be held responsible to distribute funds inaccordance with this section.

(d) When a patient on non-Medi-Cal status converts toMedi-Cal coverage, any security deposit paid to the facilityby the patient or on the patient’s behalf as a condition ofadmission to the facility shall be returned and the obligationsand responsibilities of the patient or responsible party shall benull and void.


(e) Any agent who willfully violates the requirements ofthis section is guilty of a misdemeanor, and upon convictionthereof, shall be punished by a fine not to exceed twothousand five hundred dollars ($2,500) or by imprisonment inthe county jail not to exceed 180 days, or both.

Comment. Subdivision (a)(4) of Section 14110.8 is amended to reflectthe terminology of the Health Care Decisions Law (HCDL) (Prob. Code§ 4600 et seq.) and to recognize that powers of attorney for health careare treated by a separate body of law from that governing other powers ofattorney under the general Power of Attorney Law (PAL) (Prob. Code §4000 et seq.). See, e.g., Prob. Code §§ 4014 (“attorney-in-fact” definedunder PAL), 4018 (“durable power of attorney” defined under PAL),4050 (scope of PAL), 4607 (“agent” defined under HCDL), 4629(“power of attorney for health care” defined under HCDL), 4651 (scopeof HCDL). Some additional technical, nonsubstantive revisions are madein subdivision (a)(4) for clarity and consistency with the governinglanguage of the Probate Code.

Uncodified. Deferred operative date

SEC. ____. This act becomes operative on July 1, 2000.

1999] 227

REVISED COMMENTS

Prob. Code § 2 (revised comment). Continuation of existing law,construction of provisions drawn from uniform acts

Revised Comment. Section 2 continues Section 2 of the repealedProbate Code without change. See also Gov’t Code §§ 9604 (referencemade in statute, charter, or ordinance to provisions of one statute carriedinto another statute under circumstances in which they are required to beconstrued as restatements and continuations and not as new enactments),9605 (construction of amended statutory provision).

Some of the provisions of this code are the same as or similar toprovisions of uniform acts. Subdivision (b) provides a rule forinterpretation of these provisions. Many of the provisions of this code aredrawn from the Uniform Probate Code (1987). Some provisions aredrawn from other uniform acts:

Sections 220-224 — Uniform Simultaneous Death Act (1953)Sections 260-288 — Uniform Disclaimer of Transfers by Will,

Intestacy or Appointment Act (1978)Sections 260-288 — Uniform Disclaimer of Transfers Under

Nontestamentary Instrument Act (1978)Sections 3900-3925 — Uniform Transfers to Minors Act (1983)Sections 4001, 4124-4127, 4206, 4304-4305 — Uniform Durable

Power of Attorney ActSections 4400-4465 — Uniform Statutory Form Power of

Attorney ActSections 4670-4743 — Uniform Health-Care Decisions Act

(1993)Sections 6300-6303 — Uniform Testamentary Additions to

Trusts Act (1960)Sections 6380-6390 — Uniform International Wills Act (1977).

See also Section 6387 (need for uniform interpretation ofUniform International Wills Act)

Sections 16002(a), 16003, 16045-16054 — Uniform PrudentInvestor Act (1994)

Sections 16200-16249 — Uniform Trustees’ Powers Act (1964)Sections 16300-16313 — Revised Uniform Principal and

Income Act (1962)

A number of terms and phrases are used in the Comments to thesections of the new Probate Code (including the “Background” portion of


each Comment) to indicate the sources of the new provisions and todescribe how they compare with prior law. The portion of the Commentgiving the background on each section of the repealed code may also useterms and phrases to indicate the source or sources of the repealedsection and to describe how the repealed section compared with the priorlaw.

The following discussion is intended to provide guidance ininterpreting the terminology most commonly used in the Comments.

(1) Continues without change. A new provision “continues” a formerprovision “without change” if the two provisions are identical or nearlyso. In some cases, there may be insignificant technical differences, suchas where punctuation is changed without a change in meaning. SomeComments may describe the relationship by simply stating that a newprovision “continues” or is “the same as” a former provision of therepealed Probate Code, or is “the same as” a provision of the UniformProbate Code or another uniform act.

(2) Continues without substantive change. A new provision“continues” a former provision “without substantive change” if thesubstantive law remains the same but the language differs to aninsignificant degree.

(3) Restates without substantive change. A new provision “restates” aformer provision “without substantive change” if the substantive lawremains the same but the language differs to a significant degree. SomeComments may describe the new provision as being the “same insubstance.”

(4) Exceptions, additions, omissions. If part of a former provision is“continued” or “restated,” the Comment may say that the formerprovision is continued or restated but also note the specific differences as“exceptions to,” “additions to,” or “omissions from” the formerprovision.

(5) Generalizes, broadens, restates in general terms. A new provisionmay be described as “generalizing,” “broadening,” or “restating ingeneral terms” a provision of prior law. This description means that alimited rule has been expanded to cover a broader class of cases.

(6) Supersedes, replaces. A provision “supersedes” or “replaces” aformer provision if the new provision deals with the same subject as theformer provision but treats it in a significantly different manner.

(7) New. A provision is described as “new” where it has no directsource in prior statutes.

(8) Drawn from, similar to, consistent with. A variety of terms is usedto indicate a source for a new provision, typically a source other thanCalifornia statutes. For example, a provision may be “drawn from” auniform act, model code, Restatement, or the statutes of another state. In

1999] REVISED COMMENTS 229

such cases, it may be useful to consult any available commentary orinterpretation of the source from which the new provision is drawn forbackground information.

(9) Codifies. A Comment may state that a new provision “codifies” acase-law rule that has not previously been enacted into statutory law. Aprovision may also be described as codifying a Restatement rule, whichmay or may not represent previously existing common law in California.

(10) Makes clear, clarifies. A new provision may be described as“making clear” a particular rule or “clarifying” a rule as a way ofemphasizing the rule, particularly if the situation under prior law wasdoubtful or contradictory.

(11) Statement in Comment that section is “comparable” to anothersection. A Comment may state that a provision is “comparable” toanother provision. If the Comment to a section notes that another sectionis “comparable” that does not mean that the other section is the same orsubstantially the same. The statement is included in the Comment so thatthe statute user is alerted to the other section and can review the casesunder that section for possible use in interpreting the section containingthe statement in the Comment.

Prob. Code § 4014 (revised comment). Attorney-in-factRevised Comment. Subdivision (a) of Section 4014 supersedes part of

former Civil Code Section 2400 and former Civil Code Section 2410(a),and is comparable to the first sentence of Civil Code Section 2295.

Subdivision (b) is comparable to Section 84 (“trustee” includessuccessor trustee). See Sections 4202 (multiple attorneys-in-fact), 4203(successor attorneys-in-fact), 4205 (delegation of attorney-in-fact’sauthority). The purpose of subdivision (b) is to make clear that the rulesapplicable to attorneys-in-fact under the Power of Attorney Law apply aswell to successors and alternates of the original attorney-in-fact, and toother persons who act in place of the attorney-in-fact.

See also Sections 4022 (“power of attorney” defined), 4026(“principal” defined).

Prob. Code § 4053 (revised comment). Recognition of durablepowers of attorney executed under law of another state

Revised Comment. Section 4053 is new. This section promotes useand enforceability of durable powers of attorney executed in other states.See also Section 4018 (“durable power of attorney” defined).


Prob. Code § 4054 (revised comment). Application to existing powersof attorney and pending proceedings

Revised Comment (1994). Section 4054 is comparable to Section15001 (application of Trust Law). Subdivision (a) provides the generalrule that this division applies to all powers of attorney, regardless ofwhen created.

Subdivision (b) is a specific application of the general rule insubdivision (a). See Section 4900 et seq. (judicial proceedingsconcerning powers of attorney). Subdivision (c) provides discretion tothe court to resolve problems arising in proceedings commenced beforethe operative date.

For special transitional provisions, see Sections 4102 (durable powerof attorney form); see also Section 4129(c) (springing powers).


Prob. Code § 4101 (revised comment). Priority of provisions ofpower of attorney

Revised Comment. Section 4101 is new. This section makes clear thatmany of the statutory rules provided in this division are subject toexpress or implicit limitations in the power of attorney. If a statutory ruleis not subject to control by the power of attorney, this is stated explicitly,either in a particular section or as to a group of sections. See, e.g.,Sections 4130 (inconsistent authority), 4151(a)(2) (revocation of powerof attorney by writing), 4153(a)(2)-(3) (revocation of attorney-in-fact’sauthority), 4155 (termination of authority under nondurable power ofattorney on principal’s incapacity), 4206 (relation of attorney-in-fact tocourt-appointed fiduciary), 4207 (resignation of attorney-in-fact), 4232(duty of loyalty), 4233 (duty to keep principal’s property separate andidentified), 4234(b) (authority to disobey instructions with courtapproval), 4236 (duty to keep records and account; availability of recordsto other persons), 4502 (effect of provision in power of attorneyattempting to limit right to petition), 4503 (limitations on right topetition).


Prob. Code § 4121 (revised comment). Formalities for executing apower of attorney

Revised Comment. Section 4121 provides the general executionformalities for a power of attorney under this division. A power ofattorney that complies with this section is legally sufficient as a grant of


authority to an attorney-in-fact. Special rules apply to a statutory formpower of attorney. See Section 4402.

The dating requirement in subdivision (a) generalizes the ruleapplicable to durable powers of attorney for health care under formerCivil Code Section 2432(a)(2). This rule is also consistent with thestatutory forms. See Sections 4401 (statutory form power of attorney).

In subdivision (b), the requirement that a power of attorney be signedby the principal or at the principal’s direction continues a rule implicit informer law. See former Civ. Code §§ 2400, 2410(c). In addition, itgeneralizes the rule applicable to durable powers of attorney for healthcare under former Civil Code Section 2432.

The requirement that the power of attorney be either acknowledged orsigned by two witnesses, in subdivision (c), generalizes part of the ruleapplicable to durable powers of attorney for health care under formerCivil Code Section 2432(a)(3). Former general rules did not requireeither acknowledgment or witnessing. However, the statutory formpower of attorney provided for acknowledgment. See former Civ. Code §2475 (now Prob. Code § 4401). This rule still applies to the statutoryform power of attorney; witnessing does not satisfy Section 4402.Subdivision (c) provides the general rule as to witnessing; specificqualifications for witnesses are provided in Section 4122.

Nothing in this section affects the requirements concerning recordableinstruments. A power of attorney legally sufficient as a grant of authorityunder this division must satisfy the general rules concerning recordationin Civil Code Sections 1169-1231. To facilitate recordation of a power ofattorney granting authority concerning real property, the power ofattorney should be acknowledged before a notary, whether or not it iswitnessed.

See also Sections 4022 (“power of attorney” defined), 4026(“principal” defined).

Prob. Code § 4124 (revised comment). Requirements for durablepower of attorney

Revised Comment. Section 4124 restates former Civil Code Section2400 without substantive change. For special rules applicable to statutoryform powers of attorney, see Sections 4401, 4402. See also Section 4050(powers subject to this division).

Section 4124 is similar to the official text of Section 1 of the UniformDurable Power of Attorney Act (1984), Uniform Probate Code Section5–501 (1991). See Section 2(b) (construction of provisions drawn fromuniform acts). The reference in the uniform act to the principal’s“disability” is omitted. Under Section 4155, it is the principal’sincapacity to contract which would otherwise terminate the power of


attorney. In addition, the phrase “or lapse of time” has not been includedin the language set forth in subdivision (a) of Section 4124 because it isunnecessary. As a matter of law, unless a durable power of attorneystates an earlier termination date, it remains valid regardless of any lapseof time since its creation. See, e.g., Sections 4127 (lapse of time),4152(a)(1) (termination of attorney-in-fact’s authority pursuant to termsof power of attorney).

See also Sections 4014 (“attorney-in-fact” defined), 4018 (“durablepower of attorney” defined), 4022 (“power of attorney” defined), 4026(“principal” defined).

Prob. Code § 4130 (revised comment). Inconsistent authorityRevised Comment. Section 4130 is new. See also Sections 4014

(“attorney-in-fact” defined), 4022 (“power of attorney” defined), 4026(“principal” defined).

Prob. Code § 4152 (revised comment). Termination of attorney-in-fact’s authority

Revised Comment. Section 4152 is drawn from the general agencyrules provided in Civil Code Sections 2355 and 2356. This sectioncontinues the substance of former law as to termination of the authorityof an attorney-in-fact under a power of attorney. For a special rule as totermination of nondurable powers of attorney on principal’s incapacity,see Section 4155.

Subdivision (a)(1) is the same as Civil Code Section 2355(a).Subdivision (a)(2) is the same as Civil Code Section 2355(b), but thereference to fulfillment of the purpose of the power of attorney is new.Subdivision (a)(3) is the same as Civil Code Section 2356(a)(1). Thesesubdivisions recognize that the authority of an attorney-in-factnecessarily ceases when the underlying power of attorney is terminated.

Subdivision (a)(4) is the same as Civil Code Section 2356(a)(2), butrecognizes that certain tasks may remain to be performed after death.See, e.g., Sections 4238 (attorney-in-fact’s duties on termination ofauthority).

Subdivision (a)(5) is generalized from Civil Code Section 2355(c)-(f).Subdivision (a)(6) is similar to Civil Code Section 2355(d) (renunciationby agent). For the manner of resignation, see Section 4207. Subdivision(a)(7) is similar to Civil Code Section 2355(e). Subdivision (a)(8) cross-refers to the rules governing the effect of dissolution and annulment ofmarriage. Subdivision (a)(9) is the same as Civil Code Section 2355(c).


Subdivision (b) preserves the substance of the introductory clause ofCivil Code Section 2355 and Civil Code Section 2356(b), which protectpersons without notice of events that terminate an agency.

See also Sections 4014 (“attorney-in-fact” defined), 4022 (“power ofattorney” defined), 4026 (“principal” defined), 4034 (“third person”defined); Civ. Code § 1216 (recordation of revocation of recordedinstruments).

Prob. Code § 4200 (revised comment). Qualifications of attorney-in-fact

Revised Comment. Section 4200 supersedes the last part of CivilCode Section 2296 (“any person may be an agent”) to the extent that itapplied to attorneys-in-fact under powers of attorney.

See also Sections 56 (“person” defined), 4014 (“attorney-in-fact”defined).

Prob. Code § 4207 (revised comment). Resignation of attorney-in-fact

Revised Comment. Section 4207 is new. For judicial procedures forapproving the attorney-in-fact’s resignation, see Section 4541(e) (petitionas to power of attorney other than durable power of attorney for healthcare).


Prob. Code § 4234 (revised comment). Duty to keep principalinformed and follow instructions

Revised Comment. Section 4234 is drawn from general agency rules.The duty to follow the principal’s instructions is consistent with thegeneral agency rule in Civil Code Section 2309. See also Civ. Code §2019 (agent not to exceed limits of actual authority). The duty tocommunicate with the principal is consistent with the general agency rulein Civil Code Sections 2020 and 2332.

Subdivision (b) is a limitation on the general agency rule in Civil CodeSection 2320 (power to disobey instructions). For provisions relating tojudicial proceedings, see Section 4500 et seq.


Prob. Code § 4235 (revised comment). Consultation and disclosureRevised Comment. Section 4235 is drawn from the Missouri Durable

Power of Attorney Law. See Mo. Ann. Stat. § 404.714(4) (Vernon 1990).


This section does not provide anything inconsistent with permissiblepractice under former law, but is intended to recognize the desirability ofconsultation in appropriate circumstances and provide assurance to thirdpersons that consultation with the attorney-in-fact is proper and does notcontravene privacy rights. See also Section 4455(f) (receipt of bankstatements, etc., under statutory form powers of attorney). The right toobtain information may be enforced pursuant to Section 4541(f).

See also Sections 4014 (“attorney-in-fact” defined), 4026 (“principal”defined).

Prob. Code § 4236 (revised comment). Duty to keep records andaccount, availability of records to other persons

Revised Comment. Section 4236 is drawn in part from Minnesotalaw. See Minn. Stat. Ann. § 523.21 (West Supp. 1994). For provisionsrelating to judicial proceedings, see Section 4500 et seq.


Prob. Code § 4300 (revised comment). Third persons required torespect attorney-in-fact’s authority

Revised Comment. Section 4300 is new. This section provides thebasic rule concerning the position of an attorney-in-fact: that theattorney-in-fact acts in place of the principal, within the scope of thepower of attorney, and is to be treated as if the principal were acting. Thesecond sentence generalizes a rule in former Civil Code Section 2480.5,which was applicable only to the Uniform Statutory Form Power ofAttorney. Under this rule, a third person may be compelled to honor apower of attorney only to the extent that the principal, disregarding anylegal disability, could bring an action to compel the third person to act. Athird person who could not be forced to do business with the principalconsequently may not be forced to deal with the attorney-in-fact.However, a third person who holds property of the principal, who owes adebt to the principal, or who is obligated by contract to the principal maybe compelled to accept the attorney-in-fact’s authority.

This general rule is subject to some specific exceptions. See, e.g.,Sections 4309 (prior breach by attorney-in-fact), 4310 (transactionsrelating to accounts and loans in financial institution).

See also Sections 4014 (“attorney-in-fact” defined), 4022 (“power ofattorney” defined), 4026 (“principal” defined), 4034 (“third person”defined).


Prob. Code § 4301 (revised comment). Reliance by third person ongeneral authority

Revised Comment. Section 4301 is drawn from the Missouri DurablePower of Attorney Law. See Mo. Ann. Stat. § 404.710(8) (Vernon 1990).This general rule is subject to specific limitations provided elsewhere.See, e.g., Sections 4264 (authority that must be specifically granted).

See also Sections 4014 (“attorney-in-fact” defined), 4022 (“power ofattorney” defined), 4034 (“third person” defined).

Prob. Code § 4302 (revised comment). Identification of attorney-in-fact and principal

Revised Comment. Section 4302 is drawn in part from the MissouriDurable Power of Attorney Law. See Mo. Ann. Stat. § 404.719(4)(Vernon 1990). See also former Civ. Code § 2512(a)(1) (presentation byattorney-in-fact named in power of attorney) & Comment.

See also Sections 4014 (“attorney-in-fact” defined), 4022 (“power ofattorney” defined), 4026 (“principal” defined), 4034 (“third person”defined).

Prob. Code § 4303 (revised comment). Protection of third personrelying in good faith on power of attorney

Revised Comment. Section 4303 continues former Civil Code Section2512 without substantive change, with the addition of the witnessing rulein subdivision (a)(3). This section is intended to ensure that a power ofattorney, whether durable or nondurable, will be accepted and relied onby third persons. The person presenting the power of attorney mustactually be the attorney-in-fact designated in the power of attorney. If theperson purporting to be the attorney-in-fact is an impostor, the immunitydoes not apply. The third person can rely in good faith on the notarypublic’s certificate of acknowledgment or the signatures of the witnessesthat the person who executed the power of attorney is the principal.

Subdivision (b) makes clear that this section provides an immunityfrom liability where the requirements of the section are satisfied. Thissection has no relevance in determining whether or not a third personwho acts in reliance on a power of attorney is liable under thecircumstances where, for example, the power of attorney does notinclude a notary public’s certificate of acknowledgment.

For other immunity provisions not affected by Section 4303, see, e.g.,Sections 4128(b) (reliance in good faith on durable power of attorney notcontaining “warning” statement required by Section 4128), 4301(reliance by third person on general authority), 4304 (lack of knowledgeof death or incapacity of principal). See also Section 3720 (“Any person


who acts in reliance upon the power of attorney [of an absentee asdefined in Section 1403] when accompanied by a copy of a certificate ofmissing status is not liable for relying and acting upon the power ofattorney.”).

See also Sections 4014 (“attorney-in-fact” defined), 4018 (“durablepower of attorney” defined), 4022 (“power of attorney” defined), 4026(“principal” defined), 4034 (“third person” defined).

Prob. Code § 4307 (revised comment). Certified copy of power ofattorney

Revised Comment. Section 4307 is new. This section facilitates use ofa power of attorney executed in this state as well as powers of attorneyexecuted in other states. Subdivision (d) makes clear that certificationunder this section is not a requirement for use of copies of powers ofattorney. This recognizes, for example, the existing practice of good faithreliance on copies of durable powers of attorney for health care. Seeformer Section 4750 (immunities of health care provider); new Section4740.


Prob. Code § 4401 (revised comment). Statutory form power ofattorney

Revised Comment. Section 4401 continues former Civil Code Section2475 without change, except for the revision of cross-references to otherprovisions, the restoration of language erroneously omitted in 1993, andinclusion of a general reference to the law governing the notary’scertificate of acknowledgment. Section 4401 is the same in substance asSection 1(a) of the Uniform Statutory Form Power of Attorney Act(1988), with the addition of provisions to permit designation of co-agents. See Section 2(b) (construction of provisions drawn from uniformacts).

The provisions added by former Civil Code Section 2475 were drawnfrom the former Statutory Short Form Power of Attorney statute. Seeformer Civ. Code § 2450 (repealed by 1990 Cal. Stat. ch. 986, § 1). Theacknowledgment portion of the form was revised to be consistent withthe form used under California law. The word “incapacitated” wassubstituted for the words “disabled, incapacitated, or incompetent” usedin the uniform act. This substitution conforms the statutory form to theCalifornia version of the Uniform Durable Power of Attorney Act. SeeSection 4018 (requirements for creation of durable power of attorney).

Section 4401 provides the text of the form that is sufficient andnecessary to bring this part into operation. The statutory form can be


used in whole or part instead of individually drafted forms or formsadapted from a form book.

A form used to create a power of attorney subject to this part shoulduse the language provided in Section 4401. Minor variances in wordingwill not take it out of the scope of the part. For example, the use of thelanguage of the official text of the uniform act in the last paragraph of thetext of the statutory form (protection of third party who receives a copyof the statutory form power of attorney and acts in reliance on it) insteadof the language provided in Section 4401 does not take the form out ofthe scope of this part. See Section 4402(a). Nor does the omission of theprovisions relating to designation of co-agents take the form out of thescope of this part. See Section 4402(a).

After the introductory phrase, the term “agent” is used throughout theuniform act in place of the longer and less familiar “attorney-in-fact.”Special effort is made throughout the uniform act to make the languageas informal as possible without impairing its effectiveness.

The statutory form contains a list of powers. The powers listed relate tovarious separate classes of activities, except the last, which includes allthe others. Health care matters are not included. For a power of attorneyform for health care, see Section 4701.

Space is provided in the statutory form for “Special Instructions.” Inthis space, the principal can add specially drafted provisions limiting orextending the powers granted to the agent. (If the space provided is notsufficient, a reference can be made in this space to an attached sheet orsheets, and the special provisions can be included on the attached sheetor sheets.)

The statutory form contains only a limited list of powers. If it isdesired to give the agent the broadest possible powers, language similarto the following can be added under the “Special Instructions” portion ofthe form:

In addition to all of the powers listed in lines (A) to (M) above, Igrant to my agent full power and authority to act for me, in any waywhich I myself could act if I were personally present and able to act,with respect to all other matters and affairs not listed in lines (A) to (M)above, but this authority does not include authority to make health caredecisions.

Neither the form in this section, nor the constructional provisions inSections 4450-4465, attempt to allow the grant of the power to make awill or to give the agent extensive estate planning authority, althoughseveral of the powers, especially lines (G), (H), and (L) of the statutoryform, may be useful in planning the disposition of an estate. An


individually tailored power of attorney can be used if the principal wantsto give the agent extensive estate planning authority, or additional estateplanning powers can be granted to the agent by stating those additionalpowers in the space provided in the form for “Special Instructions.” Forexample, provisions like the following might be included under thespecial instructions portion of the statutory form:

In addition to the powers listed in lines (A) to (M) above, the agent isempowered to do all of the following:

(1) Establish a trust with property of the principal for the benefit ofthe principal and the spouse and descendants of the principal, or anyone or more of them, upon such terms as the agent determines arenecessary or proper, and transfer any property in which the principalhas an interest to the trust.

(2) Exercise in whole or in part, release, or let lapse any power theprincipal may have under any trust whether or not created by theprincipal, including any power of appointment, revocation, orwithdrawal, but a trust created by the principal may only be modified orrevoked by the agent as provided in the trust instrument.

(3) Make a gift, grant, or other transfer without consideration to orfor the benefit of the spouse or descendants of the principal or acharitable organization, or more than one or all of them, either outrightor in trust, including the forgiveness of indebtedness and thecompletion of any charitable pledges the principal may have made;consent to the splitting of gifts under Internal Revenue Code Section2513, or successor sections, if the spouse of the principal makes gifts toany one or more of the descendants of the principal or to a charitableinstitution; pay any gift tax that may arise by reason of those gifts.

(4) Loan any of the property of the principal to the spouse ordescendants of the principal, or their personal representatives or atrustee for their benefit, the loan bearing such interest, and to besecured or unsecured, as the agent determines advisable.

(5) In general, and in addition to all the specific acts enumerated, doany other act which the principal can do through an agent for thewelfare of the spouse, children, or dependents of the principal or for thepreservation and maintenance of other personal relationships of theprincipal to parents, relatives, friends, and organizations.

It should be noted that a trust may not be modified or revoked by anagent under a statutory form power of attorney unless it is expresslypermitted by the instrument granting the power and by the trustinstrument. See Section 15401(b).


Section 4404 and the statutory form itself make the power of attorney adurable power of attorney, remaining in effect after the incapacity of theprincipal, unless the person executing the form strikes out the language inthe form that makes the instrument a durable power of attorney. See alsoSection 4018 (“durable power of attorney” defined).

The last paragraph of the text of the statutory form protects a thirdparty who receives a copy of the statutory form power of attorney andacts in reliance on it. See also Section 4034 (“third person” defined). Thestatement in the statutory form — that revocation of the power ofattorney is not effective as to a third party until the third party has actualknowledge of the revocation — is consistent with Sections 4304 (goodfaith reliance on power of attorney without actual knowledge of death orincapacity of principal), 4305 (affidavit of lack of knowledge oftermination of power). See also Sections 4300 (third persons required torespect agent’s authority), 4301 (immunities of third person), 4303(protection of person who acts in good faith reliance upon power ofattorney where specified requirements are satisfied). The protectionprovided by these sections and other immunities that may protect personswho rely on a power of attorney (see Section 4303(b)) apply to astatutory form power of attorney. See Sections 4100 (application ofdivision to statutory form power of attorney), 4407 (general provisionsapplicable to statutory form power of attorney).

The language of the last portion of the text of the statutory form setforth in Section 4401 substitutes the phrase “has actual knowledge of therevocation” for the phrase “learns of the revocation” which is used in theuniform act form. This substitution does not preclude use of a formincluding the uniform act language. See Section 4402(a) (third sentence).

Neither this section, nor the part as a whole, attempts to provide anexclusive method for creating a power of attorney. Other forms may beused and other law employed to create powers of attorney. See Section4408. However, this part should be sufficient for most purposes.

For provisions relating to court enforcement of the duties of the agent,see Sections 4500-4545.

The form provided by Section 4401 supersedes the former statutoryshort form power of attorney under former Civil Code Sections 2450-2473 (repealed by 1990 Cal. Stat. ch. 986, § 1). But older formsconsistent with former Civil Code Sections 2450-2473 are still effective.See Section 4409 & Comment.

See also Sections 4014 (“attorney-in-fact” defined to include agent),4026 (“principal” defined), 4034 (“third person” defined).


Prob. Code § 4405 (revised comment). Springing statutory formpower of attorney

Revised Comment. Section 4405 continues former Civil Code Section2479 without substantive change. Section 4405 is not found in theUniform Statutory Form Power of Attorney Act (1988). This section isdrawn from Section 5-1602 of the New York General Obligations Law.A provision described in subdivision (a) protects a third person whorelies on the declaration under penalty of perjury of the person or personsdesignated in the power of attorney that the specified event orcontingency has occurred. The principal may designate the agent oranother person, or several persons, to make this declaration.

Subdivision (d) makes clear that subdivisions (a) and (b) are not theexclusive method for creating a “springing power” (a power of attorneythat goes into effect upon the occurrence of a specified event orcontingency). The principal is free to set forth in a power of attorneyunder this part any provision the principal desires to provide for themethod of determining whether the specified event or contingency hasoccurred. For example, the principal may provide that his or her“incapacity” be determined by a court under Part 4 (commencing withSection 4500). See Section 4541(a). If the power of attorney providesonly that it shall become effective “upon the incapacity of the principal,”the determination whether the power of attorney is in effect also may bemade under Part 4(commencing with Section 4500).

See also Sections 4026 (“principal” defined), 4030 (“springing powerof attorney” defined).

Prob. Code § 4407 (revised comment). General provisions applicableto statutory form power of attorney

Revised Comment. Section 4407 restates the substance of formerCivil Code Section 2480. Section 4407 makes clear that the generalprovisions that apply to powers of attorney generally apply to statutoryform powers of attorney under this part. Thus, for example, the followingprovisions apply to a power of attorney under this part:

Section 4123(b) (application of power of attorney to all or part ofprincipal’s property; unnecessary to describe items or parcels ofproperty).Section 4124 (requirements for durable power of attorney). Thestatutory form set forth in Section 4401 satisfies the requirementsfor creation of a durable power of attorney, unless the provisionmaking the power of attorney durable is struck out on the form.Section 4125 (effect of acts by attorney-in-fact during incapacityof principal).


Section 4206 (relation of attorney-in-fact to court-appointedfiduciary).Section 4303 (protection of person relying in good faith onpower of attorney).Section 4304 (good faith reliance on power of attorney afterdeath or incapacity of principal).Section 4306 (good faith reliance on attorney-in-fact’s affidavitas conclusive proof of the nonrevocation or nontermination ofthe power).Sections 4500-4545 (judicial proceedings).

Prob. Code § 4450 (revised comment). Construction of powersgenerally

Revised Comment. Section 4450 continues former Civil Code Section2485 without change, except for the revision of a cross-reference toanother provision. Section 4450 is the same in substance as Section 3 ofthe Uniform Statutory Form Power of Attorney Act (1988). See Section2(b) (construction of provisions drawn from uniform acts). See theComment to this chapter under the chapter heading. See also Sections4500-4545 (court enforcement of agent’s duties).

See also Sections 4014 (“attorney-in-fact” defined to include agent),4022 (“power of attorney” defined), 4026 (“principal” defined).

1999] UHCDA TABLE 243

Table Showing Location of UHCDAProvisions in Proposed Law

UHCDA Prop. Law UHCDA Prop. Law1(1) ............... 46051(2) ............... 4607(a)1(3) ............... 46091(4) ............... 46131(5) ............... 46151(6) ............... 46171(7) ............... 46191(8) ............... 46211(9) ............... 46231(10) ............. 561(11) ............. 46271(12) ............. 46291(13) ............. 46311(14) ............. 46351(15) ............. 741(16) ............. 46411(17) ............. 4643

2(a)................ 46702(b) snt. 1 ...... 4671(a), 4683(a)2(b) snt. 2 ...... 4629, 4680(b)2(b) snt. 3 ...... 4671(a)2(b) snt. 4 ...... see 46592(c)................ 46822(d) ............... 46582(e)................ 46842(f) ................ 4750(b)2(g) ............... 46722(h) ............... 4674

3(a)................ 4695(a)3(b) ............... 4695(b)3(c)................ 46963(d) ............... see 46973(e)................ 4698

4 intro ¶......... 47004 form ........... 4701

5(a) .............. 4710, see 46585(b) ............... 4711, see 4712(a)-(c)5(c)................ see 4712(a)-(c)5(d) ............... 4713(a)5(e)................ see 4712(b)

5(f) ................ 47145(g) ............... 4750(c)5(h) ............... 47155(i) ................ see 46595(j) ................ see 4712(d)

6(a)................ 6(b) ............... 46856(c)................ Drabick

7(a)................ 47307(b) ............... 47317(c)................ 47327(d) ............... 47337(e)................ 47347(f) ................ 47357(g) ............... 47367(h) ............... 4675

8 .................... 4676

9(a)................ 47409(b) ............... 4741

10(a).............. 4742(a)10(b) ............. 4742(b)

11(a).............. 4651(b)(1)11(b) ............. 4657

12 .................. 4660

13(a).............. 4655(a)13(b) ............. 465613(c).............. 465313(d) ............. 465413(e).............. see 4652(a)13(f) .............. no

14 .................. see 4750 ƒƒ

15 .................. 2(b)16 .................. see part heading at

467017 .................. 1118.................. 3, 4665 ƒƒ

STATE OF CALIFORNIA CALIFORNIA LAW REVISION COMMISSION · tive Committee), Alice Mead (California...

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Transcript of STATE OF CALIFORNIA CALIFORNIA LAW REVISION COMMISSION · tive Committee), Alice Mead (California...